We were interested to read the recent decision in Graham Cleary v Health Care Corporation Pty Ltd t/as Wollongong Private Hospital [2023] NSWDC 263.
In that case, Mr Cleary was being wheeled on his hospital bed for a CT scan following the surgical removal of a bone spur on his spine. The hospital staff lost control of the hospital bed and it crashed into a wall.
It was the plaintiff, Mr Cleary’s case that the impact caused a graft fragment to be expelled from his vertebrae and to come to rest on the outer vertebral surface under the L5 nerve. The defendant’s case was that the force was too minor to have caused the bone graft to be expelled from the site.
The judge found in favour of the plaintiff, saying “I do not accept that it was “small” or “minor” in its effect and there is no evidence that the graft material was otherwise precariously placed”.
The plaintiff succeeded in his claim and damages were awarded.
