NICOLA BROWN v. EAST AND MIDLOTHIAN NHS TRUST
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD NIMMO SMITH in the cause NICOLA BROWN Pursuer; against EAST & MIDLOTHIAN NHS TRUST Defenders: ________________ |
Pursuer: Hofford; Thompsons
Defenders: Anderson; R. F. Macdonald
3 December 1999
In this action of reparation, in which I heard a proof before answer, the pursuer seeks an award of damages for loss, injury and damage which she suffered as the result of a back injury which she sustained on 7 August 1997 while working in the course of her employment with the defenders as an auxiliary nurse on Ward 7 at Liberton Hospital. The only witness to give evidence about the circumstances in which she came to be injured was the pursuer herself. She started work as a nursing auxiliary at the City Hospital in Edinburgh in February 1993. She was transferred to Liberton Hospital and started work in Ward 7 on 11 May 1997. This was a rehabilitation assessment ward for elderly patients who suffered from various conditions. At the material time there were about twenty patients in the ward. One of them was a man whom I shall identify as JS in order to protect his privacy. He was over six feet tall, weighed over thirteen stones, and was affected by Parkinson's disease. He had been in the ward for some months. His condition affected the co-ordination of his movements and his balance. As a result he tended to fall if he attempted to walk without assistance. There were three recorded incidents when he had fallen while attempting to walk without assistance, on 26 July and 4 and 6 August 1997. The records relating to him included a care plan which was kept at the foot of his bed. On 1 March 1997 an entry was made in the care plan to the effect that when walking he should be escorted by two nurses. This entry was reviewed from time to time and kept in force. It remained in force on 7 August 1997. The pursuer was aware of it. She was also aware of his tendency, if unescorted, to attempt to walk by himself, which had led to these incidents. She added that he always wanted to get up.
On the morning of 7 August 1997 there were five nursing staff on duty in Ward 7: Staff Nurse Joyce Milne, an enrolled nurse and three auxiliary nurses, of whom one was the pursuer. At about 9.30 a.m. Staff Nurse Milne and the pursuer took a break. They returned from it at about 9.55 a.m. when the other three members of staff (one of whom was to be absent from the ward on escort duty) were sent for a break. At about 10.25 a.m. the pursuer was working at a nursing station in the centre of the ward. Staff Nurse Milne went to attend to a patient in a side room about fifteen to twenty feet away. What happened next requires to be considered in some detail. I did not find the pursuer to be a particularly reliable witness, particularly in her evidence-in-chief, but I have come to the view that the account given by her, especially in cross-examination, is the one on which I must proceed. My hesitation arises from the fact that in a number of respects the pursuer's evidence was at variance with her case on record and her evidence in cross-examination not only expanded upon, but was in some respects at variance with, her evidence-in-chief. Whatever may be the reason for the first of these features, the second appeared to me to arise from a desire on the part of the pursuer to play down those aspects of the incident which might reflect adversely upon her. At all events, the account on which I am prepared to proceed is as follows. At the nursing station the pursuer was filling in bowel charts. JS was sitting in a chair by his bed in a six-bedded area about eight to ten feet from the pursuer. He wanted to go to the lavatory. He knew that he required to be escorted when he went, so he asked the pursuer by saying "toilet" with a stutter. The pursuer was aware what he wanted. She did not however do anything at this stage. She explained that this was because he had already been to the lavatory not long before this, she expected Staff Nurse Milne to return after a couple of minutes and she knew that it would take two of them to escort JS. She accordingly left him where he was. He then asked for a second time to go to the lavatory. At this point the pursuer got up, went over to the foot of the bed nearest to her and asked him to wait a minute while she went and got someone to help her. She then returned to the nursing station. He then called out for a third time that he wanted to go to the lavatory. After that he stood up. The pursuer saw that he was standing. He then made to take a step, but lost his balance. By this time the pursuer was standing on the other side of bed from him. She ran round towards him and attempted to stop him from falling by placing her hands against his upper arms. At that stage she shouted to Staff Nurse Milne to come and help her. JS's weight shifted and he started to fall over to his right. The pursuer shouted again and Staff Nurse Milne came running to JS's right side. At that point JS had not quite fallen on to his bed. As the pursuer and Staff Nurse Milne then pushed him into a chair the pursuer felt a snapping sensation in her back. This was the point at which her back was injured. Shortly thereafter Staff Nurse Milne filled in an incident report in presence of the pursuer. This report, which is accurate as far as it goes, states:
"N/A Nicola Brown while trying to prevent [JS] to mobilise on his own from his bedside. Just as she was helping him to his chair he fell to one side pulling N/A Brown with him causing injury to her back. The pain and discomfort between her shoulders preventing her to carry out her duties. [JS] requires the supervision of two nurses to mobilise."
The pursuer avers that the accident was caused by common law fault on the part of the defenders and by their having failed to comply with the provisions of regulation 4 of the Manual Handling Operations Regulations 1992 (S.I. 1992/2793). The main thrust of the common law case is that the defenders were allegedly negligent in failing to take reasonable care to devise, institute and maintain a safe system of work, and in particular to ensure that the ward was adequately staffed at all times, and in failing to take reasonable care to provide the pursuer with adequate training and instruction in assisting patients who were unsteady on their feet and in the techniques necessary for handling falling patients. Regulation 4 of the 1992 regulations provides inter alia:
"(1) Each employer shall -
(a)so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(b)where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured -
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to [certain specified factors and questions],
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable ..."
The pursuer avers that the operation upon which she was required to engage involved a risk of her being injured and that the need for her to undertake it on her own could have been avoided; and in any event, esto the need could not have been avoided, that no suitable and sufficient assessment of the operation was undertaken and no steps were taken to reduce the risk of injury to her.
In considering the pursuer's case in these respects I had the benefit of hearing not only the pursuer's evidence but also that of Mrs Maureen Hamilton, a nurse expert witness called for the pursuer, and Mrs Penny Docherty, the back care co-ordinator of Lothian University Hospitals NHS Trust, who was called for the defenders. I propose to discuss first the training received by the pursuer. While she was employed at the City Hospital the pursuer attended a two-day course on 24 and 25 April 1996. This was part of the education provided to staff in the moving and handling of patients and the course was described as a two-day efficient moving and handling workshop. A "manoeuvres chart" was completed. This showed the manoeuvres in which instruction was given during the course. At the end of the chart, under the heading "Walking" are two items, "Walking with a Patient - Holds" and "The Falling Patient". The chart indicates that the first of these items was demonstrated and discussed, but not the second. Mrs Docherty explained, however, that dealing with a falling patient was an integral part of the course and that there would have been discussion of it during the course, but it would not have been demonstrated or practised. The staff attending the course would be told what to do if a patient started to fall: they should not attempt to stop a falling patient from falling, but should, using a relaxed hold, lower the patient gently to the floor. This was not practised because there was a risk of injury to the participants, it was artificial to attempt to recreate a fall when the participants knew what was going to happen, and it was impossible to recreate all the types of situation in which a patient might fall. She explained that the whole emphasis of the course was on the assessment of patients, and that apart from medical emergencies staff should not have to deal with falling patients. Although Mrs Docherty was not present during this particular course, I am satisfied from her evidence that the course content will have covered this item. Indeed, the pursuer's evidence was that they were told that if a patient started to fall they should assess the situation and lower the patient gently to the ground. Mrs Hamilton was critical of the fact that participants in the course were not given an opportunity to practise this manoeuvre. She regarded practice as being a necessary part of the instruction, and said that in her experience, which was mostly in north-east England, this was done. Mrs Docherty, however, said that it was not done in Scotland, for the reasons which I have already quoted. There appears to me to be scope for differences of approach to training without the need to regard one as better than the other. I see no need, in light of the explanations given by Mrs Docherty, to be critical of the content of the course which the pursuer attended, still less to hold that there was a negligent failure to ensure that she had received proper and sufficient training and instruction in the necessary techniques for handling falling patients. I am reinforced in this approach by reference to "The Guide to the Handling of Patients" published by the National Back Pain Association in collaboration with the Royal College of Nursing. The third edition, which was published in 1992, contains in chapter 16, entitled "The Falling and the Fallen Patient", the following passage:
"If while supporting a patient the helper finds that she is starting to bear the weight of the patient and he is about to fall she must not hesitate: it is invariably safer to let the patient down in a controlled manner to the floor. ... This is a skilled manoeuvre and nurses must be given the opportunity to practice [sic] it following demonstration, in order to counteract their natural instincts to save the patient from falling."
Mrs Hamilton referred to this in support of her opinion. The fourth edition, however, which was published in 1997, not long after the pursuer's accident, apart from stating "at no time must the nurse support a collapsing patient", does not repeat the statement in the third edition about practising the manoeuvre. Mrs Hamilton regarded the fourth edition as irrelevant, because it was published after the accident, but it appears to me to be relevant because it serves to cast light on current thinking around the time of the accident and to demonstrate that the practising of this manoeuvre was not regarded as essential.
In any event, the question of training in techniques for supporting falling patients does not appear to me have any relevance to the circumstances of the present case, having regard to the way in which the accident happened. The instruction given to the pursuer, and also that desiderated by Mrs Hamilton, envisaged a situation in which a patient who was being escorted by one or more nursing staff started to fall. This was not the situation here. JS was not being escorted, he started to fall when he had stood up of his own accord and was not being escorted. Accordingly, even if I were to hold that there was some justification for criticising the content of the course in not giving the opportunity for staff to practise the manoeuvre of lowering to the floor a patient who was being escorted and started to fall, I would not be prepared to hold that there was any causal connection between that failure and the circumstances of the pursuer's accident.
I turn now to the question of staffing levels on the ward at the material time. Both the pursuer and Mrs Hamilton gave evidence that there should have been at least three members of staff on duty. I heard no evidence to contradict this. The question of staffing levels can be very complex, but having regard to the state of the evidence I do not propose to discuss it. Counsel for the defenders was content to proceed on the basis that even if there were insufficient staff on duty at the material time, this had no part to play in the accident: even if the general criticism was valid, the accident was not caused by the absence of another pair of hands. I agree with this. As the pursuer knew, and as events showed, Staff Nurse Milne was only a short distance away and was within earshot, and she quickly came to the pursuer's assistance once she had been called. When JS said for the first time that he wanted to go to the lavatory, the pursuer could readily have called to Staff Nurse Milne to come and help to escort him, and meantime could have gone over to JS to see that he did not stand up of his own accord until they were both there. Whether or not the situation would have been any different had there been another member of staff on duty is no more than a matter for speculation. I am satisfied, however, that it is not proved the absence of another member of staff caused the accident.
I turn now to the case under regulation 4 of the Manual Handling Operations Regulations 1992. I was referred in this context to Anderson v Lothian Health Board 1996 S.C.L.R. 1068, Cullen v North Lanarkshire Council 1998 S.C. 451 and Hall v City of Edinburgh Council 1999 S.L.T. 744, which establish that the employer comes under a duty to take the appropriate steps if injury is foreseeable as a possibility. Counsel for the pursuer submitted that there had been a breach of regulation 4(1)(a). In my option this submission is not supported by the evidence, because all the witnesses, including Mrs Hamilton, accepted that the need for nursing staff to undertake manual handling operations at work which involved a risk of their being injured could not be avoided. To the extent that the burden of proof was on the defenders to establish that it was not reasonably practicable to avoid risk, I am satisfied on the evidence that this burden has been discharged. This being so, the defenders were under a duty to make a suitable and sufficient assessment of all such manual handling operations and to take appropriate steps to reduce the risk of injury to their employees arising out their undertaking any such manual handling operations to the lowest level reasonably practicable. Assessment may be undertaken in two ways, the general and the particular. So far as general assessment is concerned, I am satisfied that the training course attended by the pursuer constituted a suitable and sufficient assessment of the manual handling operations to be undertaken by her. I have already discussed the question of training in the context of the common law case, and in my opinion the same considerations are applicable in the context of regulation 4. So far as particular assessment is concerned, this, in order to be suitable and sufficient, must be related to the manual handling operations which may require to be performed in caring for each individual patient. It was foreseeable that if JS were to walk without being escorted by two persons he might fall and cause injury, and it was accordingly necessary to make a particular assessment relating to him. Counsel for the pursuer submitted, with the support of evidence to this effect given by Mrs Hamilton, that the care plan for JS did not amount to an assessment within the meaning of the Regulations. I do not accept this. There is no need for the assessment to take any particular form so long as it is suitable and sufficient and those who may be affected by it are aware of it. I would regard the care plan, and in particular the part of it which related to JS's walking with two nurses, as a suitable and sufficient assessment. The pursuer, along with the other nursing staff, was aware of its contents and significance. Accordingly I am satisfied both that a suitable and sufficient assessment was made and that the defenders had taken appropriate steps to reduce the risk of injury to their employees arising out of their undertaking the manual handling operation of escorting JS. In any event, for reasons I have already discussed, I am not satisfied that, even if the Regulations were breached, the breach caused the accident.
The defenders have tabled pleas of sole fault and contributory negligence on the part of the pursuer. The account given by her, especially in cross-examination, drives me to the conclusion that the accident was caused by the fault of the pursuer. As I have said, she was fully aware of the risks associated with JS, and in particular that, as previous experience had shown, he was liable to fall if he tried walking by himself and so required to be escorted by two nurses. Instead of acting as she did she could readily have gone over to JS to make sure that he did not stand up unescorted, and called for Staff Nurse Milne to come and help her to escort him. Her failure to do this led to a situation of emergency in responding to which she was injured. The pursuer herself said in cross-examination that she did not know why she had not gone straight over to JS to stop him from standing, and called at once to Staff Nurse Milne; and accepted that she might have been at fault in not asking for help right away. It is not difficult to conclude that she was at fault in creating this situation and thus exposing herself to a reasonably foreseeable risk of injury.
In these circumstances I shall sustain the second, third and fourth pleas-in-law for the defenders and pronounce decree of absolvitor. It remains for me to add that by a Joint Minute the parties were agreed that in the event of the defenders being found liable to make reparation to the pursuer in respect of the accident, without any finding of contributory negligence, the amount of the pursuer's loss, injury and damage was £88,000, inclusive of interest to the date of proof, said sum comprising solatium at £10,000 inclusive of interest, net loss of earnings to date of proof at £12,000 inclusive of interest, future loss of earnings at £63,000 and payment under sections 8 and 9 of the Administration of Justice Act 1982 at £3,000 inclusive of interest. In view of this agreement it is unnecessary for me to discuss further the damages which I would have awarded had I found the defenders liable to make reparation to the pursuer.