Kathleen Ann Mcleish Agianst Lothian Nhs Board
| Jurisdiction | Scotland |
| Judge | Lord Mulholland |
| Neutral Citation | [2017] CSOH 71 |
| Published date | 28 April 2017 |
| Court | Court of Session |
| Docket Number | PD2090/14 |
| Date | 28 April 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 71
PD2090/14
OPINION OF LORD MULHOLLAND
In the cause
KATHLEEN ANN McLEISH
Pursuer
against
LOTHIAN NHS BOARD
Defender
Pursuer: Hofford QC, Milligan; Thompsons
Defender: Reid; NHS Scotland Central Legal Office
28 April 2017
Introduction
[1] On 10 June 2011 at about 1.30pm the pursuer was working as an emergency nurse practitioner within the emergency department of the Edinburgh Royal Infirmary. She was in the process of showing two consultants from Birmingham Children’s Hospital one of the resuscitation rooms. On entering the room she slipped and fell injuring herself in the process. In this action the pursuer seeks damages from the defender in respect of a statutory breach of Regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992.
[2] The case came before me for proof on liability and quantum. At the proof the pursuer led evidence in support of her case. The pursuer gave evidence and led evidence from Professor Margaret McQueen (given on commission), a Professor of Orthopaedic Trauma, Dr Colin Rodger, a Consultant Psychiatrist who examined the pursuer, Dr Bridgette Wilson, a witness to the accident, Kate McIlwraith, a witness to the aftermath of the accident, and Dr Alexandra Stewart, an expert in pain. The defender led evidence from Marion Reid, a witness to the events immediately preceding the accident, Sue Bagley, the pursuer’s line manager, and Dr Jane McEachan, a Consultant Orthopaedic Surgeon. A joint minute of agreement (JM) was presented to me covering medical records, X- Rays, occupational records, absence records and quantum for some of the heads of loss.
The pursuer
[3] The pursuer, who was born on 1 October 1956, is an emergency nurse practitioner based at Edinburgh Royal Infirmary. An emergency nurse practitioner undertakes a clinical role whereby she will assess, diagnose and treat patients who present themselves at the A&E Department. This, for example, will include stitching wounds, manipulating and re-setting fractured bones and providing support for the fracture, diagnosing illnesses and prescribing medicines. She is graded at band 7 which has a managerial element to the job description. She has to manage a number of band 6 emergency nurse practitioners. She previously worked in Leith Hospital Children’s ward, the Western General Hospital and in the Simpsons special baby care unit before moving to the Edinburgh Royal Infirmary. She is very experienced, having worked in Accident & Emergency since 1992. Emergency nurse practitioners normally work a shift pattern which includes day, twilight, and night shifts. Night shift requires experience given the non-availability of nurse practitioner colleagues to assist, although there are doctors and registered nurses available during night shift to call on for support, if necessary. There are no concerns about the pursuer’s abilities as an emergency nurse practitioner which was confirmed by her line manager, emergency nurse practitioner, Sue Bagley, who gave evidence for the defender. There was some evidence about the pursuer’s absence from work record which is agreed at JM paragraphs 8 and 9. However, many of the absences were related to the injuries sustained in the fall which is the subject of this judgment and there was no suggestion in evidence that the reasons given for these or the other absences were other than genuine. Her qualities as a nurse were described by the witness Dr Alexandra Stewart as stoic and dedicated to her patients. I shared her impression of the pursuer’s qualities, which came across to me when hearing her evidence.
The locus
[4] The Accident & Emergency Department of Edinburgh Royal Infirmary has two resuscitation rooms. Each has a sliding door and a curtain which can operate as a screen when the door is open. The entrance to the second resuscitation room where the accident occurred is around 10 feet wide. The room is fairly big, described by the pursuer as being about half the size of the courtroom (the proof took place in court 10 of the Court of Session). There is medical equipment and trolleys in the room. The floor is the standard linoleum hospital floor. As with any hospital it requires to be kept clean and, as the hospital is in operation 24 hours, the cleaners require to clean around the work of the hospital. Cleaning services at the Edinburgh Royal Infirmary are currently subcontracted although they will revert back to the NHS in 2017. The cleaning of the second resuscitation room on 10 June 2011 at or about 1.30pm was being carried out by the witness Marion Reid. She was using the trolley provided to her which contained mops and cleaning products. The wet floor sign which she was provided with was not deployed as it was hanging on her trolley. She had also been provided with a ‘work in progress’ sign but this was not deployed either. The method of working used by Marion Reid was to use two wet mops when washing the floor. However, on this occasion, shortly before the pursuer arrived, she only used one mop when washing the floor, starting at the back of the room and finishing at the entrance. This made the floor streaky after washing and not obviously wet.
Events of 10 June 2011
[5] The pursuer gave evidence explaining that she had agreed to show two visitors, Dr Bridgette Wilson and Dr Sapna Verma around the resuscitation room during a break in their conference. They were both interested in paediatric resuscitation. According to the pursuer and Dr Wilson, the doorway and the curtain screen were open. The pursuer stopped at the door entrance and saw Marion Reid, a domestic cleaner, within the room. The pursuer asked her if she would mind if they came in. She said no, she didn’t mind if they came in. The pursuer walked into the room. Having taken 3 or 4 steps into the room, as she turned to speak to her visitors, she slipped on the wet floor and fell heavily. According to the pursuer, Mrs Reid did not give any warning that the floor was wet. She noticed that there was a pile of dry sweepings on the floor but was unaware that the floor was wet. She would not have taken her guests across a wet floor and would not have entered the room had she seen a wet floor warning sign at the entrance to the room. As she explained, if she had seen a floor wet sign she would not have entered the room until it was safe to enter. To her a wet floor sign was a warning that the floor was wet and that would stop her from walking over the wet floor. Her account was supported in broad terms by Dr Wilson although she did not recall a conversation between the pursuer and the cleaner, in fact she did not recall the cleaner speaking at any time. The only significant discrepancy in this chapter of the evidence was the location of the cleaner’s trolley. Mrs Reid said she had placed her trolley in the middle of the entrance so anyone who sees it knows you’re in there doing your work. However, the pursuer did not see a trolley in the doorway, which was supported by Dr Wilson and Kate McIlwraith, a day duty nurse in charge of the A&E Department on the day of the accident. However, I accepted the evidence of the witness Reid that the cleaning trolley was placed in the entrance of the doorway of the resuscitation room. Mrs Reid was adamant in her evidence on the location of the trolley whereas the pursuer and supporting witnesses had no recollection of the trolley being in the doorway. Their attention at that time would obviously not be on matters such as the precise location of a cleaning trolley. Their attention was on the tour of the resuscitation room and after the fall on the injury to the pursuer and her wellbeing. It is understandable that they may have overlooked the precise location of the trolley. However, what is of real importance to me in determining this issue is the system of work operated by Mrs Reid. The location in the doorway was consistent with her system of work which had been in operation for some time. Her system of work when cleaning a room was to place the trolley in the doorway, as she explained, to let people know that she was there, in the room, doing her job. This was important to her as she did not place a wet floor sign on the floor when wet mopping the floor and her method of information was the placement of the trolley in the doorway. However, the placement of the trolley in the doorway did not mean that wet mopping was taking or had taken place. As she accepted, her cleaning routine may only involve dry sweeping, or dry mopping, or polishing and dusting, or tidying, all of which do not involve washing and wet mopping. Further, the trolley when placed in the doorway did not and was not intended to prevent anyone from entering the room. Having regard to the dimensions of the trolley and the doorway there was ample room either side of the trolley for persons to enter and Mrs Reid did not say that the location of the trolley was intended to physically prevent entry to the room. According to Mrs Reid and Dr Wilson, at the time of entry into the room Mrs Reid was holding a mop. I accepted this evidence. However, in my opinion this, like the positioning of the trolley, only indicates that the room is being cleaned, not that the floor is wet. A wet floor sign would clearly inform that the floor is wet and the absence of such a sign would be an indication that the floor is not wet.
[6] The precise terms of the brief conversation between the pursuer and Mrs Reid is also of importance. Mrs Reid accepts that there was a brief exchange of words as the pursuer is not the type of person to enter a room being cleaned without saying anything. I took that to mean that the pursuer was known as a polite person which certainly chimed with her demeanour when giving evidence. According to the pursuer she asked Mrs Reid if she and her guests could enter the room. Mrs Reid agreed and the pursuer entered the room with her guests. Mrs Reid did not say...
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