Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 36
Background
In 2017, the Plaintiff suffered a left shoulder injury when working as a Patient Support Assistant for the Sunshine Coast Hospital. In her role, the Plaintiff was supervised by an employee of the hospital. The Plaintiff suffered her injury when she intervened while a colleague was placing a mattress onto a hospital bed. Her left arm became caught between the mattress and the end of the bed. Subsequent to the injury, the Plaintiff suffered debilitating pain in her left shoulder that prevented her from working, affected her daily life, and required medication to manage. The plaintiff alleged negligence against the shift supervisor, with the hospital being vicariously liable for the negligence.
The plaintiff and defendant disagreed as to the events leading up to and during the subject incident. Notably, the plaintiff submitted that she reached out, leading with her left arm, to take hold of one end of the mattress when the defendant threw the mattress on the bed without warning. Conversely, the defendant alleged that the plaintiff began assisting without warning and without request, and in doing so her left arm became caught between the mattress and the bed frame. The defendant consequently denied all liability and alleged the plaintiff was 30% contributorily negligent for her injuries.
In assessing if negligence was established, Hindman J found that the plaintiff was prone to exaggeration and was not consistent in the reports she was giving to doctors, which worked against the plaintiff.
Duty of Care
The defendant was the employer of the plaintiff and thus had a duty to take reasonable care not to expose its employees to unnecessary risks of injury in carrying out their work. Furthermore, pursuant to 305B of the WCRA the duty owed by the defendant to the plaintiff was a duty to take precautions against a risk of injury that was foreseeable, was not insignificant and, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions.
Breach of Duty of Care
In assessing section 305, Hindman J found that:
‘The risk that a co-worker in the vicinity of another co-worker may intervene, without notice, to assist in a manual handling task (such as placing a mattress on a bed) is foreseeable. That is particularly so where the item being manually handled is bulky, weighty or awkward to handle, or is commonly manually handled by two persons (like a mattress). The risk that the intervening co-worker may be injured as a consequence of such unannounced intervention is also foreseeable. Again, that is particularly so where the item being manually handled is bulky, weighty or awkward to handle (like a mattress).
The above risk of injury is not insignificant. A mattress is bulky and weighty; particularly once a mattress is in an unsupported or uncontrolled motion,45 a person in the path of the moving mattress could be hurt.
A reasonable person moving a mattress would take precautions to ensure that no person or part of a person was, or could readily become, in the path of the moving mattress. If that could not be achieved visually then the reasonable person would issue a verbal warning to other persons in the vicinity about the proposed movement of the mattress or to stand clear of the moving mattress.
If such precautions were not taken it was probable that injury would occur to the person intervening to assist without notice in the manual handling task and that the injury would be serious. Those matters would be probable because: (i) of the matters mentioned in (b) above; (ii) the person intervening to assist would put themselves, or part of themselves, in the path of the moving mattress; (iii) the person intervening to assist may wrongly assume how the person moving the mattress intends to move it or be unprepared for the movement that actually occurs.’
Judgement
Justice Hindman ultimately awarded judgement for the Plaintiff, finding that the Defendant breached its duty to take precaution against the foreseeable risk that a person in the immediate area of where the mattress was being placed onto the hospital bed could result in injury to the Plaintiff. Hindman J was satisfied that had the defendant taken extra steps to mitigate risk, such as giving a verbal warning to stand clear, it would have eliminated or reduced the risk of injury.
However, Hindman J also attributed 25% contributory negligence against the Plaintiff for the injuries. This is due to the Plaintiff’s conduct being ‘interventionalist and unnecessary’.