Palackalody v St Vincent’s Hospital Sydney Limited [2025] NSWDC 496

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Key takeaways

This matter suggests that when an employer’s system of work is inadequate and a worker cannot ethically refuse a potentially hazardous task, the worker’s failure to prioritise their own safety does not amount to contributory negligence.

Brief facts

The worker, a cardiothoracic nurse employed by St Vincent’s Hospital Sydney Limited, sustained an injury on 15 May 2017 while repositioning a patient ‘without adequate equipment and assistance’.

At the time, the coronary care unit faced prolonged staffing shortages and increased patient demand. As a result, the worker had been performing labour-intensive, ‘fatiguing’ shifts leading up to the incident.

The subject patient weighed approximately 96 to 98 kilograms and was required to remain in a specific position following a procedure. However, the patient kept slipping, and his bed was not fitted with an extension to prevent him from slipping. Although the worker’s shift had ended, as she was leaving, the nurse with primary care for the subject patient requested her assistance to reposition the patient due to the lack of staff.

This was the fifth occasion that day that the worker was required to reposition the subject patient and as she pushed/pulled the patient, she felt a ‘clicking sensation’ in her back.  

While this matter raised several issues, this discussion focuses on contributory negligence.

The employer submitted that there should be a finding of 30% contributory negligence against the worker for her failure to adhere to her training, request assistance and apply suitable lifting techniques.

Judgment

The matter was heard before Acting Judge Levy in the District Court of NSW.

His Honour found in favour of the worker and made no deductions for contributory negligence.

On primary liability, the Court held the worker’s injury was foreseeable on the basis that the employer retained a manual handling coordinator to train nurses, suggesting the employer was aware of the risk. There was also a history of back injuries sustained by nurses in the coronary care unit.

The Court found the employer could have prevented this injury by:

• Rostering sufficient staff for the shift;
• Upon observing the height and weight of the subject patient, the nurse responsible for the patient or the unit manager should have arranged for a bed extension; or
• Providing an adjustable bed in the coronary care unit.

On contributory negligence, his Honour rejected the employer’s claim that the worker’s injury resulted from her failure to take care of her own safety simply because she had moved heavy patients ‘countless times’ before.

His Honour noted a clear distinction between moving patients and regularly repositioning them, finding the employer’s argument to be speculative and based on a ‘level of non-specific generality’.

His Honour further found deficiencies of the employer’s own system of work in failing to provide sufficient staff and to produce evidence proving the presence of additional nurses who were adequately trained and available to assist the nurse with primary care of the subject patient.

Considering the worker had just finished her shift, His Honour concluded her actions did not amount to contributory negligence but were ‘a transient episode of inadvertent divergence from self-care’.

Even if the worker failed to take adequate care for her own safety, his Honour found this was due to the employer’s inadequate system of work and the worker’s own ‘compassionate response’ to place the patient’s needs ahead of her own.

Implications

An employer is required to produce evidence to indicate that its own system of work was sufficiently adequate for the Court to then consider whether a worker contributed to their own injury by failing to take adequate precautions for their safety within that system. Additionally, employers should consider whether it is unreasonable to expect a worker to refuse to undertake a potentially hazardous task if it would then breach the worker’s ethical duties inherent to their role.