With thanks to Paul Mangopoulos for drawing attention to the appellate decision Munday v St Vincent’s Hospital [2021] VSCA 170, available on AUSTLII.
Ms Munday, a nurse, had brought a claim for an injury she suffered when attempting a patient transfer using a slide board of a type for which she had not received training. At trial, although the judge found that the Hospital had breached its duty of care to Ms Munday, by failing to provide her with any training in relation to the safe use of the slide board, she held that Ms Munday had failed to establish a causal link between the breach and her injury. Because no evidence had been led as to what the training instruction would have involved, her Honour said, she remained ‘uncertain as to whether or not training in the use of the unusual slide board … would have avoided injury to Ms Munday’ (see [4]).
The appellant submitted that the training would inevitably have directed a person using the slide board not to put, or keep, their thumb in the hole in the slide board when using or preparing to use the board to effect the transfer of a patient. That inference could be drawn based on ordinary human experience or ’common sense’, and this Court was in as good a position as the trial judge to draw inferences from the evidence (at [25]).
The respondent argued that it could not be inferred that the training would have involved an instruction that Ms Munday not place her thumb in the board at the relevant point in the transfer, because the evidence simply did not address that (at [26]).
The Court held (by majority) that the judge was correct in declining to draw the inference for which Ms Munday contended, regarding the content of the hypothetical training, saying at [36]:
Having examined the evidence for ourselves, we would not draw the inference for which Ms Munday contends. What takes this case beyond the realm of common sense is that it was far from self-evident how this board was to be used or, in particular, why the board had a hole at each end.
And at [44]:
In this case we consider it would be speculation for us to conclude that training in the use of the particular board would have involved a definitive instruction not to place the user’s thumb or fingers in the holes when using the board with a patient. There are simply too many unknowns, in an area requiring specialist expertise. Ms Munday needed to satisfy us that it was more likely than not that any training would have directed Ms Munday not to place her thumb in the hole in the slide board when using it to transfer a patient, or in preparation for such a transfer. She has not done so.
Leave to appeal on the causation finding was granted but the appeal was dismissed.