WCRA: beware of tricky causation when alleging preventative safety measures

Prasad v Ingham’s Enterprises Pty Ltd [2016] QCA 147

Further, to the earlier post, the appeal while allowing breach, again stumbled for the plaintiff on causation.

Boddice J (Fraser and Philip McMurdo JJA agreeing):

[76] In determining whether there had been a breach of the duty of care, the question for the primary Judge was not merely whether retention of the matting that had been in place prior to 2006 would have prevented or minimised the injury. The question included whether the replacement of the rubber matting removed in 2006, or other measures, more probably than not would have prevented or minimised the injury which was in fact sustained by the appellant.[26]

[77] The primary judge, in considering this aspect, found that the appellant, to succeed, had to establish that any risk assessment would probably have produced a result which did not involve removal of the rubbing matting. In so finding, the primary Judge unduly narrowed the test in Kuhl. The primary Judge had found there were a range of measures which could have been used to reduce the risk of prolonged standing, including anti-fatigue mats. Regard had to be had to the possibility of other measures being taken, including the replacement of that matting.

[78] Once the primary Judge correctly found that no risk assessment had been undertaken by the respondent in relation to the significant step of removing the rubber matting, it ought to have followed that the respondent had breached its duty of care to the appellant in failing to undertake that risk assessment.

[79] The primary Judge expressly found that an employee like the appellant, who stood in one place at a work station on 13 degree Celsius hard concrete floors for most of the working day was at risk of developing a range of musculoskeletal disorders, including plantar fasciitis.[27] There was evidence other measures, including the use of anti-fatigue matting, which would have minimised the risk of injury. Had the respondent undertaken a risk assessment, the exercise of reasonable care would have favoured the implementation of other measures like anti-fatigue matting into the workplace. Rubber matting had previously been provided by the respondent. Its usefulness in the industry was well-known and there was no evidence lead to suggest cost or other factors favoured a different approach to recognised industry practice.

Causation

[89] The primary Judge erred in failing to find that the appellant had established that the respondent had breached its duty of care to her in failing to undertake a risk assessment in relation to the removal of the rubber matting. It is therefore necessary to consider whether the primary Judge also erred in finding that the appellant had not established her condition of bilateral plantar fasciitis was causally related to the breach of duty.

[90] To succeed, the appellant had to establish more than the mere existence of an association between the respondent’s breach of duty and the occurrence of her condition. As French CJ observed, in Amaca Pty Ltd v Booth:[30]

“The existence of an association or a positive statistical correlation between the occurrence of one event and the subsequent occurrence of another may be expressed as a possibility, which may be no greater than a ‘real chance’ that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement, relevant to factual causation in law, that the first event ‘creates’ or ‘gives rise to’ or ‘increases’ the probability that the second event will occur. Such a statement contains an assumption that if the second event occurs it will have some causal connection to the first. However, if the association between two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause of that occurrence. An after-the-event inference of causal connection may be reached on the civil standard of proof, namely, balance of probabilities, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a ‘mere possibility’ or ‘real chance’ that the second event would occur given the first event.”

What must be established is a causal connection between the conduct and the injury, even if it be that other causative factors may be in play.[31] In that event, the question is not what was the most probable cause but whether the respondent’s negligence was a cause of the appellant’s condition.[32]

[91] The primary Judge’s ultimate conclusion was that “the appropriate conclusion in the light of all of the evidence is that, more likely than not, the conditions under which the plaintiff was working were a cause of the plantar fasciitis from which she suffered”. In reaching this conclusion the primary Judge noted that there was an absence of any significant explanation for the condition other than the appellant’s work.[33]

[92] That the appellant developed the very condition which was foreseeable as a consequence of her duties of employment, in circumstances where the respondent had breached its duty of care to the respondent, is strongly suggestive that the appellant’s personal injuries were caused by the respondent’s breach of duty in failing to undertake the risk assessment, which would have supported the use of anti-fatigue matting in the workplace.

[93] However, to succeed, the applicant had to establish, on the balance of probabilities, that the measures the respondent failed to adopt would have prevented or minimised her injuries. The necessary satisfaction of this element of causation was described in Kuhl:[34]

“To satisfy the element of causation … it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action … would have prevented or minimised the injuries the plaintiff sustained.”

[94] That requirement was also considered by McMeekin J in Woolworths Ltd v Perrins:[35]

“In order to establish the necessary causal link between any arguable negligence on the part of the employer and the injury suffered by the employee, it is necessary to show that the measures that it is said the employer failed to adopt would protect the employee from injury, not ‘could’ or ‘might’: Queensland Corrective Services Commission v GallagherTurner v South Australia. In that latter case Gibbs CJ said:

‘When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd.”

(Citations omitted)

[95] The primary Judge’s finding that there was no evidence that rubber matting would have added to the cushioning effect already provided by the boots worn by the appellant, was not supported by the evidence, including the expert evidence. There was evidence that whilst wearing gumboots provided some protection, wearing gumboots and using anti-fatigue matting provided a greater protection to the plantar fascia[36].

[96] However, the primary Judge’s finding that the appellant had not established that her condition was caused by the respondent’s breach of duty, as there was no evidence any measure taken by the respondent would probably have made a difference (in that the appellant would not have developed that condition), was supported by the evidence.

[97] The evidence did not support a finding that the hardness of the surface, as distinct from the mere fact of standing, was the crucial matter.[37] Mr Locke’s evidence was that his studies to date were inconclusive as to whether hard floors had anything to do with the cause of plantar fasciitis.[38] Dr Werner gave evidence that the provision of cushioning mats for concrete surfaces may lower the risk of the development of the condition.[39]

[98] The expert engineer, Mr McDougall, gave evidence that the potential risks associated with prolonged standing, cold temperatures and potential risk controls had been identified in poultry processing industry guides from as early as 1993, with risk control strategies including the provision of anti-fatigue matting to reduce the effects of standing on a cold, hard floor. He also gave evidence that guidelines in the Australian Meat Industry also recognised that rubber matting can reduce significantly the discomfort of working on cold concrete floors. [40] However, Mr McDougall could not say those control measures would have guaranteed an injury would not occur in the workplace. The measures suggested by him were the recommended measures in all of the guidance documents to manage risk and manual musculoskeletal injuries in the workplace.[41]

David Cormack – Brisbane Barrister & Mediator

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