Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57 (Link to Caselaw).
Graham Cleary underwent spinal surgery at Wollongong Private Hospital, which was operated by the appellant, Health Care Corporation Pty Ltd (HCC). The following day, two registered nurses conveyed Mr Cleary in his hospital bed from the intensive care unit (ICU) to the radiology department (Radiology) for a CT scan. When returning from Radiology to ICU, the bed in which Mr Cleary was being conveyed came into contact with a wall. Following the incident, Mr Cleary reported pain and numbness in his left leg. Graham Cleary underwent spinal surgery at Wollongong Private Hospital, which was operated by the appellant, Health Care Corporation Pty Ltd (HCC). The following day, two registered nurses conveyed Mr Cleary in his hospital bed from the intensive care unit (ICU) to the radiology department (Radiology) for a CT scan. When returning from Radiology to ICU, the bed in which Mr Cleary was being conveyed came into contact with a wall. Following the incident, Mr Cleary reported pain and numbness in his left leg.
Mr Cleary commenced proceedings in the District Court claiming damages for negligence. The primary judge accepted Mr Cleary’s account of events surrounding the incident, found that HCC was negligent, and that Mr Cleary’s symptoms were caused by the bed hitting the wall. Her Honour awarded damages to Mr Cleary in the sum of $583,711.
HCC appealed from the primary judgment on 16 grounds, which can be summarised into four issues. The first issue concerns her Honour’s findings regarding the bed hitting the wall and the effect of the incident on Mr Cleary (grounds 1-7 and 9). The second issue concerns her Honour’s finding that HCC was negligent (grounds 8, 10 and 15). The third issue is in regard to her Honour’s findings on causation (grounds 11-14). The final issue concerns the assessment of damages (grounds 16 and 17).
Outcome as per the headnote
(1) As to Issue 1 (grounds 1-7 and 9), the primary judge did not err in accepting Mr Cleary’s account of the incident, the effect of the collision on his body and his sensation of immediate pain and discomfort. [49]. Mr Cleary’s evidence was supported by the evidence of Mr Egidis and to the extent the two accounts differ, her Honour placed more weight on contemporaneous documents: [40], [42], [46]. Ms Gaviria’s evidence was not consistent with the evidence of Mr Egidis or Mr Cleary: [48].
(2) As to Issue 2 (grounds 8, 10 and 15), the primary judge did not err in finding that HCC was negligent: [63]. Having regard to the common ground that the bed made contact with the wall, and to her Honour’s acceptance of Mr Cleary’s account of events, it was open to her Honour to find that Mr Egidis had lost control of the bed at the time it hit the wall: [54]. The primary judge did not err in concluding that the risk her Honour identified was neither far-fetched, fanciful nor insignificant: [62].
(3) As to Issue 3 (grounds 11-13), her Honour did not err in finding that Mr Cleary’s symptoms were caused by the bed hitting the wall. Her Honour’s finding was supported by Mr Cleary’s evidence regarding the lack of relevant pain and their sudden onset at and following the collision, as well as the expert evidence and the evidence of Dr Pitham: [77].
(4) As to Issue 4 (grounds 16 and 17), it was open to her Honour to find that Mr Cleary had capacity to return to part time work, earning $800 per week: [85]. The Court accepted Mr Cleary’s submission that a reduced figure of $5,229 be awarded for past economic loss: [87]. Mr Cleary conceded that her Honour erred in awarding any damages for future economic loss and past domestic assistance: [88], [91]. The primary judge erred in the assessment of future medical expenses as it was not justified on the evidence, and in the assessment of future equipment as no evidence was provided as to whether the claims had been made to the insurer for equipment and the insurer had declined them [105], [109]. Her Honour did not err in her assessment of damages for past and future superannuation and future domestic assistance: [90], [99].
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