|JUDGE:||Devereaux SC DCJ|
|CATCHWORDS:||EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – where plaintiff employed in the defendant‟s warehouse – where plaintiff assaulted at work by another employee approximately five weeks after starting work for the defendant – where plaintiff seeks damages for breach of employment contract and negligence – whether the defendant should have foreseen, and taken steps to protect the plaintiff from the risk of injury in the workplace|
 The plaintiff submits “it is sufficient to establish causation that a defendant’s breach of duty materially increased the risk of injury to the plaintiff”, referring to Founders v Miller  NSWCA 238. The defendant takes issue with that proposition, arguing the plaintiff must prove that the performance of the duty would have averted the harm, referring to Wolters v the University of the Sunshine Coast  QSC 298.
 It is not clear to me that Founders v Miller is authority for the proposition the plaintiff refers to it for. It is unnecessary for me to decide a matter of law. It is sufficient to notice the statements of McHugh J. in Chappel v Hart (1998) 195 CLR 232, quoted by Hoeben J. in Founders v Millar at , which include the following:
‘The existence of the relevant causal connection is determined according to common sense and not according to philosophical or scientific theories of causation’ …
‘Before a defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person.’
 The real argument in the present case is whether if, contrary to my conclusions, the defendant had breached a duty to take reasonable care to prevent a foreseeable injury to the plaintiff by failing to counsel Gell, the breach caused the injury. The defendant submits, among other things, that Gell’s attack on the plaintiff was irrational and violent; and taking into account that Gell had been jailed before, the plaintiff has not demonstrated any further counselling than was given by Simpson would have affected his behaviour and thereby prevented the injury. The plaintiff submits there is nothing to suggest Gell, whatever his criminal history, would not have reacted well to counselling. I am not persuaded the question, had it arisen, could have been dealt in the way the plaintiff suggests. The question would be whether, it being accepted that the defendant was or should have been aware Gell was a risk of reasonably foreseeable injury to the plaintiff, failure to counsel Gell materially contributed to the realisation of the risk.
 The plaintiff gave particulars of the terms of the warning he says the defendant should have given, as follows:
“Mr Gell ought to have been warned that threatening and aggressive behaviour would not be tolerated in the workplace and depending upon the nature of the incident either that a further act of such a nature could or would result in termination of his employment or that his employment was terminated.‟
 I have drawn certain inferences about Gell, based on the evidence and trusting I have not floated into speculation, and made findings about his conduct, inconsistent with the plaintiff’s evidence. That character and conduct, I have found, did not give rise to a foreseeable risk of injury to the plaintiff. I think it likely that Gell valued his job and a solemnly delivered warning would have settled his behaviour down. But I cannot conclude on the balance of probabilities that, on 17 March 2010, having arrived late and engaged in a difficult phone call with a customer and then observed what he seems to have considered the ill-advised actions of the plaintiff, a warning would have affected what followed. In any case, to embark on the exercise of judging causation seems to require that I proceed on assertions of conduct and character inconsistent with the findings. That is, to assess whether failure to counsel Gell materially contributed to the plaintiff’s injury requires speculation.
David Cormack – Brisbane Barrister.