Bond J with Gotterson and Morrison JJA agreeing
The plaintiff was successful before the trial judge in her claim for sustaining a psychiatric injury after being accosted in a car park by a former employee late at night, after finishing her shift. The car park was controlled by her employer and had a security guard albeit at the entrance to the business premises of the car park. The security guard did not have a view of the car park but was assisted by CCTV cameras and some lighting.
It was usual for female workers to leave late at night and sometimes early in the morning after their shifts to collect their cars, be picked up or walk to the train station. It was also not uncommon for some to stay behind to chat, smoke etc.
In the 12 years before the claim, there had not been an incident involving an assault in the car park.
The assault came about after a former employee, Aaron Brain returned to the car park. He was recognised by another employee with whom he spoke, together with another worker. Later that night Brain approached three separate female workers apart from the plaintiff and whom he was not known to and asked for assistance. The three workers on different occasions were able to disengage from Brain without incident, although feeling differing degrees of apprehension. The fourth worker approached was the plaintiff who less fortunate than her colleagues.
Brain’s fictitious story to the plaintiff was that he had a pregnant partner who needed help and asked her to come to his car and show him where the train station was. The plaintiff declined and walked to her car and got into the driver’s seat, however, before she could close the door he asked for a hug and tried to put his hand around her neck. The plaintiff pushed away his hand, got out of the car and ran away screaming.
Bond J stated that the appropriate starting point is the consideration of ss 305B-305E of the Workers’ Compensation and Rehabilitation Act 2003, which are analogous to ss 9-12 of the Civil Liability Act 2003.
His Honour accepted foreseeability and relevant to determining causation that the breach of duty in question was by reference to training and instruction of workers as to what to do in similar events. Namely, if the three prior workers had informed the security guard including by way of mobile phones of Brain’s conduct, the incident involving the plaintiff would have been prevented.
However, on appeal, the plaintiff stumbled on causation. While Bond J found that the trial judge applied the “but for” test, his Honour was critical of the failure of the trial judge to engage with the statutory test:
 The applicant was justifiably critical of the paucity of his Honour’s reasons on this critical issue. There was no engagement with the statutory provisions, which require an approach to causation different to that which is the subject of the common law: see Strong v Woolworths Ltd (2012) 246 CLR 182 at -, cited in a similar context by Jackson J in Stokes v House With No Steps  QSC 79 at  and see also The Corporation of the Synod of the Diocese of Brisbane v Greenway  QCA 103 at -. Nor was there any engagement with the evidence of the individuals who had been approached. Finally, there was no engagement with the applicant’s argument at trial that, on the evidence, the proper conclusion was that the respondent had not proved the injury to her would have been avoided had the alleged negligence not occurred. Although his Honour plainly rejected that argument, he did not explain why. The failure to provide adequate reasons is an error of law: see Drew v Makita (Australia) Pty Ltd  2 Qd R 219 at .
Bond J applied the High Court authority per Gageler J in Henderson v State of Queensland (2014) 255 CLR 1 at - and Gordon J in Re Day (2017) 340 ALR 368 at  as to the requisite standard of inferential reasoning when direct proof is not available.
Two of the workers did not give evidence at the trial, and their police statements were relied upon at trial. These workers both expressed a degree of fear and apprehension; critically the conduct occurred outside the car park and on the way to the train station. There was no evidence as to whether they would have associated Brain and making a complaint to the security guard at their employer. There was also no evidence they had a mobile phone or would have reported their incident before the plaintiff’s assault.
Of the other worker who gave evidence on this point, she felt a little bit scared while she was in the car park. Importantly, she thought she had received training to report such matters but did not think it was sufficient to be concerned.
Bond J considered that even if the security guard was informed, there was insufficient evidence to legitimately infer that the security would then have left and found Brain. The first two of the incidents occurred outside the car park, and some of the information was Brian got into his car and drove off.
His Honour further considered the scenario of the security guard finding Brain and asking him to leave. His Honour was not persuaded this would have occurred or that Brain would not have returned once the security guard’s attention was drawn elsewhere. His Honour noted that in the first instance Brain had been recognised and was known but was not deterred in continuing his behaviour.
Unsurprisingly, Bond J found factual causation was not established, and there was no basis to apply the “exceptional” case in s 305D(2). The appeal was upheld and the claim dismissed with judgment for the defendant.
David Cormack – Brisbane Barrister & Mediator