Shirley Aileen Bearman v Australian Capital Territory Community and Health Service [1990] ACTSC 3 (12 January 1990)

SUPREME COURT OF THE ACT

SHIRLEY AILEEN BEARMAN v. AUSTRALIAN CAPITAL TERRITORY COMMUNITY AND HEALTH
SERVICE
S.C. No. 202 of 1984
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Negligence - personal injury - safe system of work - whether breach of duty of care - nurses' aid injured at work lifting patient

General Cleaning Contractors Ltd v. Christmas (1953) AC 180

Neill v. NSW Fresh Food and Ice Pty Ltd (1962-63) 108 CLR 1362

Hamilton v. Nuroof (W.A.) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18

Turner v. State of South Australia (1982) 42 ALR 669

Bankstown Foundry Pty Ltd v. Braistina [1986] HCA 20; (1986) 160 CLR 301

Vozza v. Tooth & Co. Ltd. [1964] HCA 29; (1964) 112 CLR 316

Kondis v. State Transport Authority (1984) 58 ALJR 531

The Commonwealth of Australia v. Introvigne [1982] HCA 40; (1982) 150 CLR 258

McLean v. Tedman and Anor (1984) 58 ALJR 541

HEARING

CANBERRA
12:1:1990

ORDER

There be judgment for the plaintiff in the sum of $222,388.20.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in the course of her employment by the defendant as an enrolled nurse's aid at the Allambee Nursing Home in Aranda in the Australian Capital Territory on 1 April 1978.

2. The plaintiff's case was that on that day she was engaged in the task of lifting a patient and she suffered a severe back injury. She sues her employer in contract and in negligence. Particulars of the breach of contract and breach of the duty of care owed by the defendant to the plaintiff are as follows:
(a) Failing to provide for her a safe system of work.

(b) Failing to provide for her a safe place of work.
(c) Failing to instruct her adequately in safety procedure.
(d) Permitting and/or requiring her to work in a
dangerous manner and/or circumstance.
(e) Failing to provide suitable mechanical lifting
devices.
(f) Failing to take any or any adequate precautions
for her safety.
(g) Exposing her to a risk of injury.
(h) Requiring and/or permitting the Plaintiff to move,
lift and/or turn patients of considerable weight
and strength without adequate mechanical or manual
assistance.
(i) Failing to heed the request made from time to time
by the Plaintiff to the servants and agents of the
Defendant for assistance in performing the above work.
(j) Failing to heed the warnings of the Plaintiff that
the tasks required of her were beyond her physical
capacity.
(k) Failing to provide armchairs of a kind of which
would permit the Plaintiff to carry out proper and
safe lifting techniques that is chairs the height
of which could be raised or lowered with ease and
chairs the sides of which could be folded.
(l) Requiring and/or permitting the Plainiff to turn
or lift patients from chairs to beds the height of
which could not be raised or lowered with ease and
the sides of which could not be folded so as to
permit the Plaintiff to turn and lift in a proper
and safe manner.
(m) Failing to properly supervise the Plaintiff.
(n) Failing to provide wardsmen to assist in lifting
of strong/heavy patients.
(o) Failing to provide sufficient staff to adequately
assist in lifting patients.

3. By its amended defence the defendant has admitted the employment of the plaintiff, denied each and every allegation of breach of contract and breach of duty of care and alleged contributory negligence on the part of the plaintiff, particulars whereof are as follows:

(a) performing work contrary to instructions given by
the servants or agents of the defendant;
(b) failing to request assistance or additional
assistance where the task so warranted;
(c) failing to take reasonable and/or adequate care
for her own safety and well being;
(d) failing to use properly if at all mechanical aids
provided by the defendant.

4. The plaintiff was born on 26 October 1949 (now 40 years of age) at Broken Hill, New South Wales. She attended Broken Hill High School and reached intermediate standard. She worked for a period at Woolworths in Broken Hill as a checkout operator and then joined the Broken Hill District Hospital at the age of 17 to work as a nurse assistant. She stayed there until about 1968. She was first married on 9 March 1968 whereupon her employment at the hospital ceased. She came to live in the Australian Capital Territory in 1973 and worked again as a checkout operator with Woolworths until the beginning of 1976. She then started at the Allambee Nursing Home in Aranda as a nurse assistant working part-time three days a week and caring for geriatric patients.

5. Allambee Nursing Home was taken over by the forerunner to the present defendant and the plaintiff, with others, was offered permanent full-time employment. The plaintiff accepted and was enrolled as a trainee nurse's aid at Royal Canberra Hospital in October 1977. It was a 12 month course. She attended the School of Nursing and received training in the School of Nursing and in the wards on a rotational basis. There was no lifting of patients during training. The lifting was done by male wardsmen. During the initial training course the plaintiff was given instruction in lifting practices.

6. Halfway through the course the plaintiff was sent back to Allambee. In April 1978 Allambee was a 146-bed hospital. There were three wards with just under 50 patients per ward. The staff worked on a roster system of three shifts per day. The morning shift was from 7.15 am to 3.45 pm; the evening shift was from 12.45 pm to 9.15 pm; and the night shift was from 9.00 pm to 7.30 am. The patients were nursed in three wards known as Wings A, B and C. A Wing was considered to be the physically heavy ward; B Wing was considered to be the lightest from a nursing point of view, and in C Wing there was a mixture of patients who were ambulant or bed or chair ridden. A bed and chair ridden patient would be regarded as a heavy patient. Likewise, a patient who was difficult and unco-operative would be regarded as a heavy patient because such patients were heavy to lift. The wards were staffed by three nurses and a qualified sister on each roster. If someone was off sick there would only be two nurses and the sister. Any physical work was done by the three nurses.

7. The beds at Allambee varied in height and were non-adjustible. They also tended to be very low and this made it difficult for the nursing staff lifting the patients in and out of beds. The beds were fitted with guard rails, the purpose of which was to prevent patients from getting out of bed or from rolling out of bed once they had been put there by the nursing staff. When a patient had to be lifted in or out of bed the guard rail of course had to be lowered. In the lowered position the rails were below the mattress level and tended to obstruct the nursing staff in the lifting operation. The nursing staff's legs would come into contact with the guard rails in the lowered position and this caused the staff to have to bend over the bed in the lifting operation.

8. As Mrs M.A. Johnson, a nursing sister, said in evidence, as she was lifting she would get the patients up and over the bed and almost have to topple them in because her knee would hit against the rail, so that she could not lift them right across or get them further on the bed.

9. There were no lifting devices available to the staff at Allambee until some time in 1977. A "Henry" lifter was then provided. This was a canvas sling operated hydraulically with chains. The sling had to be put under the patient's buttocks and another canvas sling put around their back, a chain had to be clipped back up on to the lifter and then a hydraulic pump was operated which had the effect of swinging the patient across the bed from a chair or vice versa. This machine was not used by the staff because it was very impracticable and in the general opinion of the staff, including Mrs Johnson, actually dangerous. The chain was so heavy that if it had hit the patient it would have caused injury. The "Henry" lifter was kept in a lady patient's room because she was a very heavy lady and the staff needed a lot of assistance to get her in and out of bed. Otherwise it was not used.

10. Some time between 1977 and when the plaintiff suffered her injury on 1 April 1978 another type of lifter was provided. It was used to transport a patient from bed to the bathroom and the patient was bathed in the lifter. The patient would then be transported back to their room or chair in the lifter and transferred out of it. The lifter could not be used to lift the patient into bed. That had to be done physically by the nursing staff. There was only one such lifter and the staff used to fight over it. Subsequently each Wing was provided with one of those lifters.

11. As a result of complaints made by the nursing staff about the amount of lifting they were required to do, two wardsmen were provided in 1977 when Allambee came under the Royal Canberra Hospital. One wardsman would work on morning shift and the other on afternoon or evening shift. But they had to have two days off per week, so on those two days one would be off and the other would do a morning shift, resulting in there being no wardsman for the evening shift. That would be the position four days a week because each would have two days off, so there were only three days a week when there would be one wardsman on morning and evening shift.

12. I am satisfied on the evidence that back injuries in nursing staff are always a serious cause for concern, especially in geriatric nursing. Mrs Sheila May Crighton-Mills was formerly the Matron at Allambee from 12 March 1973 until June 1982. Up until 1977 when the hospital came under the umbrella of the Royal Canberra Hospital, she engaged the nursing staff and provided training for them. She always enquired as to their general state of health and fitness to do the job because she was conscious of the fact that there was a lot of lifting involved and any history of previous back injuries would be significant. Indeed, it is for that reason that difficult patients are usually lifted with the assistance of wardsmen. Nurses working in a geriatric environment are very much aware that lifting will be involved and they should not engage in any lifting if they have a back problem.

13. I am satisfied that, because the work which the nursing staff were required to perform at Allambee was so heavy and physically demanding, they were constantly complaining to those in authority about the amount of heavy lifting, the unsatisfactory beds, the chairs which the relatives of patients had provided, the absence of lifting devices and the insufficiency of male wardsmen to assist in lifting.

14. Mrs Johnson gave evidence about those matters, as did Mr Arthur Brian Spottiswood, who was the Manager of Allambee from 1971 until late 1980. He was aware of the number of back injuries at Allambee from early 1977. He advised the defendant that there had been an increase in the number of back injuries and in late 1977 called for a report to be made on the working conditions at Allambee. The report was furnished by Dr Crowe, an occupational health medical practitioner employed by the defendant, some time in early 1979. It was as a result of complaints and Mr Spottiswood's concern that wardsmen were provided in late 1977 specifically for lifting of patients and general duties relating to the male patients. Mr Spottiswood was also concerned about having adjustable beds installed and made requisitions about providing such beds. They were provided but not until 1980. He also made representations about appropriate lifting devices. He had received complaints about the "Henry" lifter over a number of years. He regarded it as unsuitable. As a result of his representations the other type of lifters were provided late in 1977. They were exclusively for lifting patients in and out of baths. There were also complaints made to Mr Spottiswood about the patients' chairs. The complaints were about the difficulties in lifting patients out of those chairs.

15. A number of witnesses gave evidence about those matters of complaint. They included Mrs Johnson and Mrs Crighton-Mills, whom I have previously mentioned, and Mrs Norma Broughton, a nursing sister who was employed at Allambee from 1976 until April 1978.

16. I am satisfied on all of that evidence that back injuries were a major problem amongst the nursing staff at Allambee before the plaintiff sustained her injury on 1 April 1978. They were causing loss of staff and staff time. Dr Crowe's report (Exhibit 3) related to an investigation carried out in March/April 1979 which is after the plaintiff sustained her injury, but I find that some of his observations are relevant to the state of affairs that existed when the plaintiff sustained her injury on 1 April 1978.

17. He observed that not only were the patients at Allambee old, but as they progressively got older they became more dependent on the nursing staff. With regard to accommodation, he said that some of the patients' rooms were crowded with articles of furniture and this reduced the safe working area of the nurses. The beds, although they could be adjusted for each patient's requirements, were at fixed heights and could not be adjusted at will. He observed that those beds could constitute a hazard for the nurse who was in a hurry and did not have time to wait until the bed was raised or lowered to a safe working height. He further observed that the lifting aids available had only limited use, namely for lowering, bathing and lifting some patients into and out of the bath. He said they appeared to be cumbersome and difficult to operate in some areas, such as toilets. Lastly, he observed that extra male attendants should be employed.

18. There was no doubt that there had been an increase in back injuries just prior to and at about the time of the plaintiff's incident on 1 April 1978. By reference to the accident book, Mr Spottiswood gave evidence that during 1977 there had been 22 such incidents, and during 1978 some 43 such incidents at Allambee. The extract from the accident book in which the plaintiff's incident of 1 April 1978 was recorded, demonstrated at least three entries of back injury within the period 1 April to 25 April 1978.

19. On the day of her accident the plaintiff was rostered on evening duty in A Wing, having commenced at 12.45 pm. The lift which the plaintiff was required to perform in the course of her duty was a very awkward lift in many respects. The patient involved was a Mr Black. The plaintiff estimated his weight to be "roughly around 12-13 stone", but I am satisfied on the other evidence that he was more like 10-11 stone in weight. The plaintiff had nursed Mr Black since 1976. He had suffered a stroke and at least one of his legs was contracted up towards his chest in a locked position described as being "a foetal position". He could not walk. He was a gentle man but difficult to move because of his deformity and difficult to lift. He also had a will of his own and could be difficult with the staff. Mr Spottiswood, the Manager of Allambee at the relevant time, described Mr Black as "a cantankerous old bugger who threw himself around a lot". He had his own armchair provided by his relatives. It was a high wingbacked chair with a low sunken seat.

20. On 1 April 1978 the plaintiff and Julie Guest, another nurse's aid, were endeavouring to transfer Mr Black from his armchair to his bed. He had been bathed by the night staff and had to be transferred back into his bed. The bed itself was rather high and had high guard rails which could be moved up and down and were designed to prevent the patient from falling out of bed. The wardsman who had been rostered for duty on the morning shift on 1 April 1978 did not report for duty but telephoned during the morning to say that he would not be presenting that day. There was no evidence about whether a wardsman was rostered for duty on the evening shift. I find as a fact that there was no wardsman available when the plaintiff sustained her injury.

21. The plaintiff described the incident in which she claims to have been injured in the following terms:

"MR HARTIGAN Now to accomplish this lift, what did you
do?---I had to - I had the patient's top so I had to
put my arms, try and get my arms in under his armpits
and hold his wrists but it was very difficult because
of the winged chair so - - -
With his Honour's permission, you might come out of the
box again. I am sorry, Mrs Sands, but it might be
easier for you to demonstrate. You had to get your -
it is your hands or your arms under Mr Black's
armpit?--- ...Yes.
Was it your hands only or did you go up to your
elbows? What was the situation?---Well, I had to go
under and the chair came up to - it was very high so
... so I sort of had to come around and under so it put
me in a sort of a funny position.
Right. And what did Julie Guest do?---She took him
under his legs because his legs were all crunched up,
as I said before, so it put us very sort of close
together really.
Okay, so you have demonstrated that. So you are over
the chair and to the side of it to get your grip?...
And where was the bed in relation to the chair at this
time?---The chair was next to the bed.
Right beside, was it?---Yes, up against the wall.
You were in a room, were you?---Yes, in ... bedroom -
in ...
You might just describe where was the - the chair was
beside the bed and where was the back of the chair in
relationship to the wall in this room?---Back against
the wall - well, just enough room for me to get in
behind it.
...
Yes?---I attempted to do the lift how I had been shown
but I could not because of the high backed chair so I
had to come around the side and sort of lean like that
because I could not lean over the top of the chair
because it was too high which means I would have been
tilted just about into the chair myself. So I came
around, put my arms under his armpit and grabbed his
wrist like that - like I was shown. And then on the
count of three we attempted to lift him. We got him so
far up and he used to go like this all the time.
Indicating a shaking of both arms?---Well, his arms
just sort of clenched up and I cannot remember whether
he had a stroke or what happened - and he attempted to
shake and grabbed hold of the rail and pull the rail
because we had him in mid-air and the rail got stuck
sideways, sort of up and down.
And you are still leaning to the left at demonstrating,
were you?---Yes. I am still like this.
And he was out of the chair at this stage?---Yes, and
we had him up in the air.
And what happened then?---And he grabbed the rail and
pulled it up as I said and then, because I ... bed
rail, I was hunched right over the bed rail in an
awkward position on my back and he came down on top of
me. And Nurse Guest sort of, because we were so close
together, as well.
What happened to Nurse Guest? She came with him, did
she?---Well, she sort of - no, she did not fall but she
sort of stumbled, too.
Right. So there you were with your back across the bed
rail - that is the cot rail, is it?---Yes.
With Mr Black on top of you?---Yes.
And what position did you adopt - or had you adopted at
that stage?---I ended up with my back - because that is
the bed rail - I ended up with my head and back down
there with my back and my legs dangling over the rail
unfortunately, sort of arched over the rail.
Okay. You come back to the witness box, if you would
please. Did you notice anything about yourself - or I
take it you released yourself from that
position?---Yes, I sure did.
And did you notice anything about yourself at that
time?---Yes, I hurt my back. I got really a sharp
stabbing pain in my back.
Did you report that incident?---Yes, I did."

22. I find that the incident happened in the way in which the plaintiff described it as having happened in her evidence in chief.

23. It was submitted on behalf of the defendant that the chair from which Mr Black was lifted had nothing to do with the plaintiff's injury, which was caused when Mr Black grabbed the handrail and the plaintiff fell against the guard rail of the bed. The further submission was that the lift was complete when she sustained her injury. I reject that submission. In my opinion transferring Mr Black from the chair to the bed involved a very awkward lift because of Mr Black's deformity, the shape and height of the chair, the height of the bed and the rail, the weight of the patient and the fact that the patient pulled the rail during the lift, jamming the rail and causing the plaintiff to fall across the rail.

24. Where, in an action for damages for negligence on the part of his employer, an injured workman relies upon a defect in a system of work there must be evidence that the system unreasonably exposed the workman to risk of injury, i.e. that the employer failed to take reasonable steps to provide a system which would be reasonably safe having regard to the dangers necessarily inherent in the operation (see per Lord Tucker in General Cleaning Contractors Ltd v. Christmas (1953) AC 180 at 195). Whether or not there has been such a failure on the part of the employer may in some cases be resolved by the application of common knowledge; in others it may be necessary to show a departure from long established practice in the type of work under consideration or by showing that an appropriate method which would eliminate or minimise the risk was reasonably available (Neill v. NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1962-63) 108 CLR 362 per Taylor and Owen JJ at 369). The duty is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury (Hamilton v. Nuroof (W.A) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 per Dixon C.J. at p 25; Turner v. State of South Australia (1982) 42 ALR 669).

25. More recently in Bankstown Foundry Pty Ltd v. Braistina [1986] HCA 20; (1986) 160 CLR 301, the High Court reaffirmed the accuracy of the above stated principles in Hamilton v. Nuroof (W.A) Pty Ltd, supra, and turned to consider the formulation of the same principles by Windeyer J. in Vozza v. Tooth & Co. Ltd. [1964] HCA 29; (1964) 112 CLR 316, at p 319:

"For a plaintiff to succeed it must appear, by direct
evidence or by reasonable inference from the evidence,
that the defendant unreasonably failed to take measures
or adopt means, reasonably open to him in all the
circumstances, which would have protected the plaintiff
from the dangers of his task without unduly impeding
its accomplishment."

A majority of the High Court said in Bankstown Foundry Pty Ltd v. Braistina at p 308 of that passage:

"This passage has been repeated more than once in recent
decisions of the Court Raimondo v. South Australia
(1979) 23 ALR 513, at p 518; McLean's Roylen Cruises
Pty. Ltd. (1984) 58 ALJR, at p 425; 54 ALR, at p 7. It
seems right to us to caution the reader against
interpreting the concluding phrase in the citation,
that is, 'without unduly impeding its accomplishment',
as furnishing an additional qualification to an
employer's liability independently of the question of
what is reasonable in the circumstances. If protective
measures are reasonably open to an employer then
ordinarily they will not unduly impede the
accomplishment of the task. The extent to which the
proposed measures would unduly impede that
accomplishment will bear directly on the question
whether it was reasonable to expect them to be
undertaken.
Furthermore, it has long been recognized that what is a
reasonable standard of care for an employee's safety is
'not a low one' O'Connor v. Commissioner for
Government Transport [1954] HCA 11; (1954) 100 CLR 225, at p 230.
Whether or not it will be found to have been satisfied
is always a question of fact to be determined in the
light of the circumstances of each case. It is
unhelpful to attempt to arrive at conclusions about
what changing standards of reasonable care require
merely by comparing the decisions in different cases
because no two cases can provide true comparability in
circumstances. The Court had occasion to make this
point recently in Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156,
in distinguishing from the case in hand the decisions
in Turner v. South Australia (1982) 56 ALJR 839; 42 ALR
669 and Castro v. Transfield (Qld) Pty. Ltd. (1983) 57
ALJR 619; 47 ALR 715."

26. In Kondis v. State Transport Authority (1984) 58 ALJR 531 at 537 Mason J. (as he then was) referred to what he had said in The Commonwealth of Australia v. Introvigne [1982] HCA 40; (1982) 150 CLR 258 at 271:

"... the law has, for various reasons imposed a special
duty on persons in certain situations to take
particular precautions for the safety of others ..."

His Honour went on to say that before the duty of care arises there must exist in the relationship between the parties that special element that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of persons to whom the duty is owed. He said in respect of the relationship between employer and employee:

"That such an element exists in the relationship of
employment is beyond serious challenge. The employer
has the exclusive responsibility for the safety of the
appliances, the premises and the system of work to
which he subjects his employee and the employee has no
choice but to accept and rely on the employer's
provision and judgment in relation to these matters.
The consequence is that in these relevant respects the
employee's safety is in the hands of the employer; it
is his responsibility. The employee can reasonably
expect therefore that reasonable care and skill will be
taken. In the case of the employer there is no
unfairness in imposing on him a non-delegable
duty; ..."

In McLean v. Tedman and Anor (1984) 58 ALJR 541 at 544, Mason, Wilson, Brennan and Dawson JJ, in a joint judgment, said:

"The employer's obligation is not merely to provide
a safe system of work; it is an obligation to
establish, maintain and enforce such a system.
Accident prevention is unquestionably one of the modern
responsibilities of an employer see Fleming, The Law
of Torts (6th ed., 1983), pp 480-481. And in deciding
whether an employer has discharged his common law
obligation to his employees the Court must take account
of the power of the employer to prescribe, warn,
command and enforce obedience to his commands."

27. Thus instructed, the issue is whether in the circumstances there was a real and appreciable risk of injury of which the defendant should reasonably have been aware; if so whether there was some means by which through the maintenance of a reasonably available system the defendant could have taken measures to protect the plaintiff from the dangers of her task without unduly impeding its accomplishment. In my opinion there was an obvious risk that those attending to patients could be injured in various possible ways in lifting patients from armchair to bed. There was such a history of back injury in like circumstances that the risk of injury to the plaintiff was reasonably foreseeable.

28. The substantial issue in this case is whether it was reasonably practicable for the defendant to lessen or obviate the risk of injury to the plaintiff. The plaintiff called expert evidence concerning the dangers involved in a female doing repetitive lifting and the need for females required to lift heavy weights to have assistance by way of mechanical aids or a sufficient number of people to ensure that no one has a greater lift than is physically possible without serious prospects of injury.

29. Dr Neil Adams, an ergonomist and senior lecturer at the Centre for Safety Science, University of New South Wales, furnished a report (Exhibit 10) and gave evidence on behalf of the plaintiff. In his report he expressed the opinion that the practice of nurses lifting patients was not a safe practice. He said there are a few situations and positions in which it may be possible for nurses to assist in the moving or lifting of a patient without undue risk to themselves, but in a majority of the lifts which nurses and aids are obliged to make, the actual load considerably exceeds the statutory limit prescribed in New South Wales, namely 16 kilograms. Further, it exceeds the limits recommended for female lifting proposed in "The Design of Manual Handling Tasks Ergonomics 1978, Volume 21, No.12, 963-985 Snook S.H.", which according to Dr Adams is widely recognised and accepted throughout Australia.

30. Furthermore, the weight which nurses are obliged to lift would impose a compressive strain on the lumbar spine in excess of the Action Limit, and in many cases in excess of the Maximum Permissible Limit. The Action Limit is defined by the National Institute of Occupational Safety and Health (U.S.) as the limit below which a reasonably fit and healthy person should be able to lift the load without undue risk of injury, and above which some mechanical assistance and/or some management control (such as restricting the lift to specially trained and capable persons working in a team lift) should be used. The Maximum Permissible Limit is that limit above which mechanical lifting techniques must be used.

31. Dr Adams said that even when two trained nurses or aids are working together and using the recommended techniques for handling a patient, the compressive load on each of their spines will be in the high risk range. Assuming an estimated weight of 11 stone for Mr Black and allowing for the plaintiff lifting half of that weight (whereas in fact she was probably lifting considerably more than half the patient's weight from the behind-the-patient position), Dr Adams purported to prove by computer that the compressive load on the spine of the plaintiff substantially exceeded the Action Limit, indicating that she was at the relevant time at significant risk of injury. He reached that conclusion without regard to the fact that the patient might have made some sudden change in demand by shifting his weight, which could engender increases in the compressive load. He concluded by evaluating that the lifting task upon which the plaintiff was engaged was a task with a high potential for injury of the kind sustained, particularly if the patient was moving vigorously or grasping other furniture.

32. In his evidence he adverted to the availability of lifting aids and particularised some of those aids and their cost. The effect of his evidence was that as at 1 April 1978 there were a number of relatively inexpensive mechanical lifting aids available on the market. Diagrams illustrating some of those aids were in evidence (Exhibits 11, 12 and 13).

33. The plaintiff also called Mr Colin George Simpson, consulting engineer and an expert in industrial safety in a variety of fields. In his report of 26 November 1989 which was in evidence (Exhibit 14), Mr Simpson expressed the view that in cases where patients are known to be difficult, heavy or violent, mechanical aids should be utilised. He referred to the large number of mechanical patient lifting devices that were available to the defendant and expressed the opinion that the use of mechanical lifting equipment clearly would have eliminated the possibility of injuries being occasioned to the plaintiff. He specified the price of a number of slings to go with the "Henry" lifter which would have been suitable for the sort of lifting which the plaintiff was required to perform.

34. In my judgment, the defendant was guilty of negligence in failing to provide for the plaintiff a safe system of work. The failure embraced a number of factors. There was a failure to provide suitable mechanical lifting devices, or alternatively, male assistants to lift a patient who was known to be a "heavy" lift. I am prepared to assume that a male wardsman would have been physically stronger than the nurses on duty, including the plaintiff. The very reason that wardsmen were employed at Allambee was to assist in the nursing care of the aged, which involved helping the nurses in lifting patients. I find that those failures amounted to a breach of the duty of care in all the circumstances, including the awkwardness of the lift out of Mr Black's high, wing-backed armchair, the height of the bed to which he was to be transferred, the obstruction which the guard rail of the bed presented and all the other facts relating to the awkwardness of the lift to which I have already referred.

35. In my view the defendant has not established contributory negligence on the part of the plaintiff. She was working under pressure, and to some extent, urgency. There were only three nurses to look after some 46-48 patients, many of whom were non-ambulatory and there was a great deal of work to be done. A fact-finding tribunal should not fail to appreciate the concomitant features of the nurses' duties in relation to geriatric non-ambulatory patients. The plaintiff did not do anything contrary to instructions. She may have failed to request assistance but there was no assistance available anyway. I can find no failure on her part to take reasonable or adequate care for her own safety. Nor was the use of such mechanical aids as were available a practical course in all the circumstances.

36. I turn to the question of damages.

37. Although as a result of the incident the plaintiff sustained severe pain in the back, she did not cease work. She went home for the day and rested but continued working at Allambee until 13 September 1978. She then returned to Royal Canberra Hospital to continue in the nursing school. She was performing duties in the Children's Ward. Those duties did not include heavy lifting. In the period April-December 1978 she was having treatment by way of phsyiotherapy at the staff clinic at Royal Canberra Hospital and at the Melba Health Centre. The pain in her back persisted notwithstanding the physiotherapy. Some days the pain would be slightly less but it persisted and medication was prescribed to relieve the symptoms.

38. The plaintiff was determined to finish the training course, which she did in October 1978. She returned to Allambee on 9 October 1978 and resumed geriatric nursing. This work involved heavy lifting, of course, and the duties soon aggravated her back condition. She received physiotherapy treatment at Allambee from the physiotherapist who treated the patients there. Nothing seemed to help her symptoms.

39. The plaintiff took recreation leave from 16 November to 14 December 1978. On 22 November 1978 the plaintiff reported to the Melba Health Clinic complaining of lumbar back ache and aching down both legs. The treating doctor recommended traction, which was administered on 23 November 1978. This did not provide any substantial relief.

40. On 20 December 1978 she suffered another injury to her back when helping to lift a geriatric patient back into bed. She was sent home by taxi via Royal Canberra Hospital. She has never resumed duties at Allambee.

41. In my view the staff clinic visits, physiotherapy and traction are all indicative of the back injury having been sustained in the incident on 1 April 1978. I reject the opinion of Dr N. Chandran, neurosurgeon, who gave evidence on behalf of the defendant to the effect that, on the hypotheses put to him, the incident of 20 December 1978 was the significant injury to the plaintiff's back. He conceded in cross-examination that the sort of accident sustained by the plaintiff on 1 April 1978 was a classical situation where one would expect disc injury.

42. The plaintiff was treated by Dr R.J. Kitchin, orthopaedic surgeon, first on 29 March 1979. On general examination her physical condition was found to be satisfactory. Her back was mobile in flexion but she had pain on extension. Straight leg elevation produced back pain. There was no neurological deficit. She was diagnosed as having chronic posterior facet joint pain, which in Dr Kitchin's view was attributable to the incident at work in April 1978. He felt that her disability was permanent. He recommended that she avoid repetitive bending, heavy lifting and prolonged standing.

43. When her husband was posted to Cyprus as a member of the Australian Federal Police, the plaintiff accompanied him and they lived there for some 12-15 months. During their stay in Cyprus the plaintiff was treated for her back condition by a United Nations medical practitioner and she also had physiotherapy. She returned to Canberra in August 1980. She did not work again until 23 March 1981 when she was given a job as a Clerical Assistant Grade 3 at the Royal Canberra Hospital in the pathology department. This work was of a clerical nature and did not involve any heavy lifting. Nevertheless she had time off work due to back pain.

44. Upon her return from Cyprus she had consulted her local general practitioner, Dr W. Beckett. He prescribed a program of physiotherapy, anti-inflammatory drugs and rest from work. He referred her to Dr Andrew Brook, rheumatologist, on 4 September 1980. On clinical examination Dr Brook found that she was tender over the L4/5 segment and extension of the spine was particularly painful. Dr Brook diagnosed that the pain was coming from the posterior structures of the L4/5 segment. She was given treatment by way of injections by Dr T.G. Lithgow. As at the date of that examination by Dr Brook on 4 September 1980, he was of the view that she was not fit to return to her occupation as a geriatric nurse's aid. As stated above, she did however resume work in a clerical capacity on 23 March 1981.

45. The plaintiff remained under the joint care of Dr Brook and Dr Lithgow until she moved to Queensland in 1983. Notwithstanding swimming exercises and other back strengthening exercises in a gym, the pain persisted.

46. She obtained part-time work at a child care centre three days a week, five hours a day. She stayed in Queensland until May or June 1985, having remarried on 22 December 1984. She and her husband then moved to Melbourne and she obtained work of a clerical nature at the Queen Victoria Medical Centre. This was a full-time position involving no lifting. She worked there from 2 September 1985 to 21 March 1986 when she and her husband moved to Adelaide. She obtained employment there at the Queen Elizabeth Hospital, Woodville, where she worked from 7 April 1986 to 30 June 1986. She and her husband then moved back to Canberra until October 1986 when the plaintiff went to live with her sister in Tweed Heads, New South Wales. She obtained employment with the Tweed Heads District Hospital as a clerk from 19 November 1986 to 19 June 1987. She and her husband returned to live in Canberra in July 1987 because the husband could not find employment in Tweed Heads. On 10 October 1987 the plaintiff obtained part-time employment with Calvary Hospital as a clerical assistant. On 5 October 1987 that employment was made permanent and at the date of hearing she was working there on a part-time basis.

47. In all this time the plaintiff's back got worse. Finally Dr Beckett referred her to Dr A.G. Robson, neuro-surgeon, on 25 September 1987. She had a CAT scan and Dr Robson thought the scan "showed trouble at L5/S1". He then gave her a myleogram and discogram and subsequently performed a fusion operation at the L4/5 and L5/S1 levels on 14 April 1988.

48. I am satisfied on the balance of probabilities that the plaitiff's long history of back pain, culminating in the operation by Dr Robson on 14 April 1988, was due to the incident at work on 1 April 1978. Since the operation the plaintiff still gets pain in the back but it is not as bad as it used to be. She still cannot sit for long without back ache and there are many domestic chores which she cannot perform. Fortunately she is assisted in those chores by her husband. When ascending stairs she has to hang on to the rail because her legs shake and she has some lack of confidence. She is back at work at Calvary Hospital but is not able to work as a nurse's aid. Because of back ache she has had to give up some social activities such as water skiing and social squash.

49. For pain and suffering, loss of enjoyment of life and all the other matters that I am required to take into account on the issue of general damages, I award the sum of $50,000.

50. The plaintiff's past wage loss has been agreed at $107,615.61. It was conceded on behalf of the plaintiff that she should not be compensated for any wage loss during her stay in Cyprus and the submission was that her past wage loss should be assessed at $95,919.51. Although I am satisfied that since 20 December 1978 when the plaintiff ceased work as a geriatric nurse's aid she has been unable to perform that work, I am not satisfied that her reduced earning is due to an incapacity to earn a comparable wage to what she would have earned if she had not suffered the injury on 1 April 1978. She chose to move away from Canberra from time to time and engage in part-time clerical work because of the other events taking place in her life. It is very much a matter of impression, but I think it would be reasonable to award the plaintiff $75,000 for past economic loss and I assess that sum.

51. The Fox v. Wood component was agreed between the parties at $9,593.92 and I assess that sum.

52. It was agreed that the plaintiff's present earnings are $66.86 per week less than what she could earn as a geriatric nurse's aid. I am satisfied that the plaintiff's earning capacity has been affected, but I am not satisfied that her loss of earning capacity is reflected in the difference between what she could earn as a nurse's aid and what she is now earning as a clerical assistant at Calvary Hospital. There is an element of choice in her present employment.

53. The present value of a continuing wage loss of $66.86 per week for 25 years is $61,658.29, for 21 years is $54,584.50 and for 15 years is $42,268.89. The nursing profession carries a high risk of back injury likely to diminish the working span of nurses. In my opinion it is reasonable to prognosticate that but for her injury the plaintiff would have worked for another 15 years rather than a longer span of years, and allowing for vicissitudes of life, I award the sum of $40,000 for loss of earning capacity.

54. I am not satisfied that the plaintiff has made a case for damages by way of domestic services pursuant to the decision in Griffiths v. Kerkemeyer [1976] HCA 35; (1977-1978) 136 CLR 161. Her husband performs many of the domestic services which cause the plaintiff difficulty. There are no chidren living at home and it seems to me that the rearrangement of domestic chores should not be compensated in damages payable by the defendant. I apply the principles set out by Gibbs J. (as he then was) in Griffiths v. Kerkemeyer.

55. The hospital and medical expenses are agreed at $17,794.28.

56. For the purposes of calculating interest on general damages and past economic loss, the agreed amount of compensation payments in the component for past economic loss is $54,307.31 and I therefore award interest on $125,000, being the sum of the award for general damages and past economic loss less the sum of $54,000 in round figures, which yields a result of $71,000. Interest at the usual rate of fourteen percent on half that sum, which is the usual method of calculating interest would yield a figure of $55,000 in round figures.

57. I am not satisfied that fourteen percent is the appropriate rate for such a long period. I adopt the lump sum approach and award $30,000 for interest.

58. The plaintiff also claimed damages in respect of prospective loss of superannuation benefits. The evidence was confined to a handwritten document (Exhibit 21), which I understand to be a summary of the superannuation benefits which the plaintiff will receive based on a number of different hypotheses. The submission on behalf of the plaintiff was that she should be awarded damages on the basis of having lost the chance to receive full superannuation benefits. It was conceded on behalf of the defendant that the plaintiff is at some risk that she will not receive full superannuation benefits if she retires early due to her back condition.

59. I am quite unable to quantify the plaintiff's prospective loss of superannuation benefits. No figures were provided and no information except a number of alternative assumptions was provided. The only evidence of any substance was that the plaintiff joined the Commonwealth Superannuation Fund on 10 August 1988, she is an eligible employee because she is employed by the Calvary Hospital (ACT) Incorporated, which is an approved authority under the relevant legislation, and a certificate in relation to her back condition issued on 12 October 1988. On such meagre information, I find it impossible to make any assessment in relation to prospective loss of superannuation. Bearing in mind that in general courts will ignore superannuation payments when assessing damages for loss of earning capacity and the paucity of evidence, I make no award in relation to superannuation.

60. In summary therefore, my assessments under the various heads are:

General damages $ 50,000.00
Past economic loss 75,000.00
Agreed Fox v. Wood 9,593.92
Loss of earning capacity 40,000.00
Agreed hospital and medical expenses 17,794.28
Interest on general damages and
past economic loss 30,000.00
Total $222,388.20

Having considered the total damages set out above as a global sum, I think it is an appropriate award.

61. There will be judgment for the plaintiff in the sum of $222,388.20.

62. I shall hear counsel on the question of costs.