A recent case highlights the need to ensure that trainees are
provided with adequate training in occupational health and safety
Whilst DLA Phillips Fox recently acted in the New South Wales
Court of Appeal case of Smith v Sydney West Area Health
Service  NSWCA 267 (and acts for hospitals in other
similar cases), this article is based solely upon the reported
Ms. Smith, a nurse employed at Nepean Hospital (with 30 years of
experience as a nurse), was injured when she performed a two-person
transfer of an elderly patient. Ms. Smith described the patient as
being 84 years of age, five feet ten, weighed about 90 kilos and
frail. She assisted the wardsman to lift the patient from the
shower chair. Each took hold of an arm and pulled him to a standing
position. He was then weight bearing and the nurse was holding onto
The wardsman who was assisting Ms. Smith let go of the elderly
patient and moved the chair away leaving Ms. Smith holding the
patient. The patient then started to fall, pulling Ms. Smith
forward. Ms. Smith explained that whilst she tried to prevent the
man from falling, she twisted and felt a pain in her back.
The wardsman was found guilty of negligence in letting go of the
patient, either at all, or at least without first informing Ms.
Smith that he was proposing to do so. In reaching this conclusion,
the Court said that the question essentially revolved around
whether a risk of injury was reasonably forseeable, in the sense
that it was not far-fetched or fanciful. The precise risk need not
be reasonably foreseen. It is sufficient for the accident to have
been of a class that might well be anticipated as one of the
reasonable and probable results of the wardsman's act.
On the facts, the Court found that the risk of injury was
reasonably foreseeable. The patient had difficulties with mobility
and was frail. His physical condition was such that he needed
assistance to come to a standing position from being seated in the
shower chair. He was also a relatively large man. There was a risk
that if the wardsman moved away from the patient, at least without
informing Ms. Smith he was about to do so, the patient might become
unsteady and lose his balance. The consequence of this meant that
Ms. Smith was the sole person managing the patient on her own, a
task usually managed by two people. Ms. Smith was not able to take
precautionary measures such as repositioning herself in an
appropriate way so as to safely support the patient.
The Court concluded that the risk of injury to Ms. Smith was
reasonably foreseeable and held the hospital vicariously liable for
its employed wardsman.
Manual handling occurs across hospitals every day and manual
handling injuries are one of the most common injuries experienced
in hospitals. This case is a reminder that hospital operators and
healthcare professionals should not become complacent and must
provide basic training to new employees.
Phillips Fox has changed its name to DLA Phillips Fox
because the firm entered into an exclusive alliance with DLA Piper,
one of the largest legal services organisations in the world. We
will retain our offices in every major commercial centre in
Australia and New Zealand, with no operational change to your
relationship with the firm. DLA Phillips Fox can now take your
business one step further − by connecting you to a global
network of legal experience, talent and knowledge.
This publication is intended as a first point of reference
and should not be relied on as a substitute for professional
advice. Specialist legal advice should always be sought in relation
to any particular circumstances and no liability will be accepted
for any losses incurred by those relying solely on this
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
What happens if a patient, particularly a mental health patient,.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).