Downes v Affinity Health Pty Ltd  QCA 129 is a recent Queensland Court of Appeal decision relating to compensation following a workplace injury. The applicant in this case failed to prove that it was her employer’s negligence that caused her injuries.
The decision highlights that proving a connection between an employer’s negligence and an applicant’s sustained injuries is made especially difficult when there are differing accounts of the facts. It is a reminder that inconsistencies in the account of events can sometimes lead to a harsh determination.
On 25 July 2007 at around 2:30am, a post-operative patient attempted to get out of her hospital bed. Ms Downes (“the applicant”), an on duty nurse intercepted and moved the patient back into her bed with the assistance of another nurse, Ms Wendland. The applicant was a longstanding registered nurse who had worked at the hospital for about 25 years.
The applicant said that she had aggravated her pre-existing spinal condition in the course of intercepting the patient and lifting her back into bed. However the precise circumstances of how she was injured were the subject of conflicting evidence between herself and Ms Wendland. The applicant claimed that the patient was sitting on the edge of the bed nearly ready to fall out. Ms Wendland’s version was that the patient was already out of the bed and was using a wheelie walker to move away from the bed.
The trial decision
At trial it was held that the applicant had failed to establish how she was injured and therefore was also unable to prove that the hospital breached its duty of care or that such a breach had caused her to aggravate her spinal condition.
Issues before the Court of Appeal
The applicant contended that the primary judge made the following errors:
- Not finding that the Hospital was in breach of duty for failing to provide a bed with full length cot rails.
- Not finding a casual link between the Hospital’s breach of duty and her injuries.
The Court held that the Hospital had breached its duty by failing to provide beds with full length cot rails. However this breach had not caused the applicant’s injury.
Failing to provide length cot rails
The Court held that there was a foreseeable risk of injury inherent in the method of the manual lifting of patients. In considering what a reasonable response to this risk would have been, the primary judge held that a bed with full length cot rails would have been an ‘even more precarious situation of attempting to climb over the rails’. The Court rejected this finding and instead held that a bed with full length rails would have prevented the patient from getting out of the gap at the end of the bed and thus the injury could have been avoided in the first place. Therefore the hospital had breached its duty by failing to provide full railings for its beds.
Link between the bed rails and the applicant’s injury
The applicant had difficulty in establishing that the absence of the bed rails had caused her injury. This was because there were inconsistencies in her accounts of how and when she sustained the injury.
The applicant gave evidence that she sustained the injury at the beginning of intercepting the patient. However she had given another account that the injury had occurred at a later stage when she and Ms Wendland were lifting the patient back into the bed. The hospital had a well established ‘no-lift’ policy which was known to the applicant. If the injury had been sustained whilst the applicant was lifting the patient then it would have been directly contrary to the hospital’s policy. The hospitals’ response to the risk of providing beds with full length rails only protected the applicant if she had moved the patient into the bed. As it was possible that the injury might have been sustained from moving the patient up the bed, the applicant was not able to prove that the hospital’s breach had caused her injuries.
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