A hospital operator's duty of care includes training all staff in occupational health and safety issues.
Hospital operators, as employers, under relevant Commonwealth and State occupational health and safety laws (for example the Occupational Health and Safety Act 2000 (NSW)), owe a duty to ensure the health, safety and welfare at work of all their employees. This duty extends to visitors (including accredited medical practitioners and patients), volunteers and contractors.
The duty includes:
- Ensuring that premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health.
- Ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used. li >
- Ensuring that systems of work and the working environment of the employees are safe and without risks to health. li >
- Providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work. li >
- Providing adequate facilities for the welfare of the employees at work. li >
Common occupational health and safety risks in the health care industry include:
- Manual handling (including injuries associated with lifting patients or equipment). li >
- Accidents travelling to and from work. li >
- Aggression and bullying from staff and patients. li >
- Needle stick injuries. li >
- Injuries caused through fatigue. li >
Hospital operators must ensure that OHS training is included in the orientation and training programs for new recruits and trainees.
Potential Personal Liability for Breaching Health and Safety Laws
If a corporation contravenes occupational health and safety laws, each director of the corporation and each person concerned in the management of the corporation may incur personal liability.
For example, in New South Wales, directors and managers will be taken to have contravened the occupational health and safety law unless either of the following is true:
- They were not in a position to influence the conduct of the corporation in relation to its breach of the provision.
- They used all due diligence to prevent the contravention by the corporation.
In practice, however, it has traditionally been very difficult to prove either defence. This may change depending on how the law is developed in light of the High Court's decision in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 262 ALR 569 (Kirk). In Kirk the majority of the High Court found that a charge in a matter arising under New South Wales occupational health and safety law must identify the particular act or omission which is said to constitute the charge. This may assist defendants by narrowing the facts in issue, however, the full ramifications of Kirk remain to be seen.
Recent Case Law - Training Requirements
A recent case highlights the need to ensure that trainees are provided with adequate training in occupational health and safety issues.
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 judgment.
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. The patient was described as being 84 years of age, five feet ten, weighing 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 him.
The wardsman (who assisted Ms Smith) let go of the elderly patient and moved the chair away. Ms Smith was left to hold the patient when the patient started to fall, pulling Ms Smith forward. Ms Smith explained that whilst she tried to prevent the man from falling, she twisted her back 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 her 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 foreseeable, 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 and doddery. 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.
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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.