Wolters v The University of the Sunshine Coast [2013] QCA 228

I refer to my earlier post in relation to the psychiatric claim where the negligence claim was dismissed because of causation, namely the preventative measure of counselling Mr Bradley’s conduct in relation to a prior employee (Ms Carney) would not have prevented the subsequent risk of injury to the plaintiff. Gotterson JA, with whom the President and Ann Lyons J concurred, after addressing the proof required for causation answered the question by highlighting the need to address and frame the question of the hypothetical intervention in the correct terms, otherwise the conclusion is flawed [42] – [48].

Gotterson JA:

[28]      The appellant submits that his Honour erred in proposing, as he did in paragraph

129 of the reasons, that the circumstance that the defendant’s breach of duty increased the risk of injury is not sufficient to establish causation. It was suggested that the cases to which his Honour referred as authority for that proposition, do not support it.

[29]    I understand his Honour to mean by these words that proof that a defendant’s breach of duty increased the risk of injury does not, of itself, prove that the breach of duty caused the injury which the plaintiff sustained and for which damages are sought. In my view, that proposition is unobjectionable. Moreover, as the following illustrates, it accords with the authorities to which his Honour referred.

[30]      In Seltsam Pty Ltd v McGuiness,34 Spigelman CJ35 observed:

“There is a tension between the suggestion that any increased risk is sufficient to constitute a “material contribution”, and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in  Chappel v Hart and in the cases that suggest the former, the actual risk had materialised. The “possibility” or “risk” that X might cause Y had in fact eventuated, not in the sense that  X  happened  and  Y  had also happened,  but  that  it  was  undisputed  that  Y  had  happened

because of X.”36

[31] These observations were adopted by Thomas JA37 in Batiste v State of Queensland38 who expressed his entire agreement with them,39 noting that they focus upon the issue whether an increased risk did cause or materially contribute to the injury actually suffered.  His Honour then made the following observations of his own:

“[10] For present purposes it is not necessary to discuss statements made in Chappel v Hart40 and Naxakis v Western General Hospital41 in the context of the particular problems on causation that  emerge  in  medical  negligence  cases  when a doctor fails to give a patient an opportunity that the patient might or might not have taken to avoid a particular risk. Those cases are now repeatedly referred to as supporting a low bench mark for the level of contribution necessary to establish causation when competing causes exist42 but I do

not understand any new general theories of causation in tort and contract to have been laid down in Chappel or in Naxakis other than  in  respect  of  cases  where  those special problems arise. It remains the law that it is still necessary for a plaintiff to prove that a defendant’s conduct materially  contributed  to  the  sustaining  of  the  injury.

This principle which forms  part  of  the  ratio  of  March v Stramare (E & MH) Pty Ltd,43 has not been questioned in any subsequent case.”44

[32]     Spigelman CJ’s observations were also adopted by Ipp JA45 in Flounders v Millar46 in a context in which his Honour described the notion that there is some equivalence between a material risk of increase of injury and a material contribution to the injury as one that has a difficulty.47

[33] It is noteworthy that the proposition under challenge by the appellant  is  also consistent with the observations of Keane JA in Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers and Ors48 where his Honour emphasised that the approach taken in Chappel v Hart, to which Thomas JA had referred in Batiste, is “one of logical inference of a causal link, not of a legal presumption which obviates the need for proof of a causal link.”49   By way of explanation, Keane JA observed:

“[278] … The inference of causation is a deduction which may logically be made in a case where the risk created or increased by the defendant’s breach of duty may operate, either alone or with other risks attending particular action or enterprise, to produce the loss. But it is not a logical deduction where the evidence, either shows that the removal of the risk created by the defendant’s breach of duty would not have prevented the occurrence of the loss by reason of the operation of the other attendant risks, or gives reason to regard the possibility of such a result as equally

probable. …”50

[34] Furthermore, a number of authorities counsel against the adoption of a formal reversal of proof in this context. Mason P51 had rejected that course in TC by his tutor Sabatino v State of New South Wales,52 saying:

“… I remain of the view that Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission. A robust and pragmatic approach to proof of causation permits, but does not compel, a finding of liability in cases of negligence by omission which (as Gaudron J points out in Bennett)  is  necessarily   based   upon   a   hypothetical   enquiry. A defendant who exposes a plaintiff to a risk of injury or who, by

omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probability that the defendant’s breach caused or materially contributed to the harm actually suffered.”

These  views  were  subsequently  endorsed  by  the  New  South  Wales  Court  of Appeal in Flounders.53

[35] Next, the appellant submits that the primary judge erred in not proceeding as if the case before him was analogous with McLean v Tedman.54 Had he done so, it is argued, the primary judge would have proceeded on the footing that an evidential onus lay on the respondent “to lead evidence to show that no kind of reprimand and

no kind of counselling would have deterred Mr Bradley from engaging in his misconduct”.55 The appellant complemented this submission with a submission that the respondent, not even having pleaded a defence to that effect, had not discharged the evidential onus, and with an alternative submission that if the respondent’s case was  that  Mr  Bradley  was  “incorrigible”  to  a  point  of  disregarding  any  such

reprimand or counselling, then the respondent’s duty of care ought to have been recast more extensively as one that required it to have dismissed Mr Bradley before the incident involving the appellant occurred.

[36] In McLean, a garbage collector sued his employer after he had been injured in the course of carrying out an employee-developed work practice in which the collecting truck would drive up one side of a road only and the collectors would pick up bins from both sides and take them to the truck. The plaintiff was injured as he crossed a busy suburban road carrying a garbage humper. It was not in contest that the driving of the truck up one side of the road and then down the other was a safe

alternative way of collecting the garbage on that road.56

[37]    The employee succeeded at first instance.  The judgment in his favour was reversed on appeal to a Full Court of the Supreme Court of Queensland on the ground that the employee had failed to demonstrate that there was a reasonable and practicable safe system of work which would have avoided the injuries he sustained. His appeal to the High Court was allowed unanimously. The plurality judgment57 contains the following observations:

“It is said nevertheless that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury. We would reject the suggestion that the appellant bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our view once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees

on the ground that the increase in the time taken to do the work would have damaged the men’s prospects of taking a second job.

In fact, Brambles called no evidence on this issue. …”58

[38] These observations, which address the persuasive onus, are to be seen as made in a context in which the availability of an alternative safe system which, had it been adopted, would have avoided the employee’s injuries, was uncontroversial. That is not the case here. It was not conceded by the respondent that had Mr Bradley been reprimanded and counselled, then the incident would not have occurred. That remained an issue for the primary judge to determine and upon which the appellant bore the onus.

[39] In my view, the appellant has not demonstrated a misapprehension on the part of the primary judge as to the evidential onus. Moreover, his Honour did not purport to find that for some reason, be it conscious defiance, lack of self control or something else, Mr Bradley could not be trusted to respond conformably with a reprimand and counselling. Such a finding played no part in the reasoning. To the contrary, his Honour found that a reprimand  and  counselling  by  Professor  Thomas,  whom Mr Bradley  regarded  as  a  mentor,  would  have  been  appropriate  to  fulfil  the

respondent’s duty of care.59

Misapplication of principle ground of appeal

[40]      As noted, in Sabatino, Mason P reminded, as Gaudron J had pointed out in Bennett v  Minister  of  Community  Welfare,60  that  in  cases  of  negligence  by  omission, a finding of liability is necessarily based upon a hypothetical inquiry. Here, as principle required, the primary judge set about such an inquiry. It was into whether the incident (and hence injury) would have been avoided if the respondent had

discharged its duty of care by taking appropriate action to reprimand and counsel Mr Bradley. That the incident occurred is a historical fact. Whether it would have been avoided is not, of itself, a fact. It is a conclusion with respect to the likelihood that the incident would have been avoided had the duty been discharged. The objective of the inquiry undertaken by the primary judge was to assess the likelihood of that.

[41]    The frame of reference for such an inquiry is set by reference to that which the duty of care required have been done. The inquiry is undertaken by assessing all relevant facts and circumstances from which a conclusion is then drawn as to the likelihood that the performance of that which the duty required have been done, would have avoided the incident.

[42]    The integrity of the inquiry is therefore dependent upon both a precise articulation of what it is that the duty of care required and an appraisal of all relevant facts and circumstances in order to assess likelihood. A failure to articulate the former or to undertake the latter risks a miscarriage of the inquiry and a resultant lack of legitimacy in the ultimate conclusion drawn from it.

[43]    A criticism made by the appellant is that the primary judge did not identify the form of reprimand or counselling that discharge of the duty required. In my view, the criticism is a valid one with consequences for the outcome of this appeal. I have formed this view for the following reasons.

[44] Consideration was given by his Honour to the identity of the person by whom the reprimand and counselling ought to have been undertaken. He was of the view that engagement of an external service provider, though open as a reasonable response, was not necessary. He concluded that reprimand and counselling by Professor Thomas would have been appropriate.61

[45] However, no consideration was given to the content of the reprimand and counselling required. Critically, no consideration was given to specific aspects of Mr Bradley’s conduct about which he should have been counselled, that would have been identified in the course of a proper investigation of the incident involving Ms Carney. Those aspects would have set the parameters for both the reprimand and counselling that he ought to have been given.

[46] It is abundantly clear that had that incident been properly investigated, then it would have been ascertained that Mr Bradley had acted in an aggressive way towards Ms Carney on a mistaken factual assumption on his part that she was holding the unpaid invoice. He acted without first ascertaining the true facts.62 This serious deficiency  in  his  behaviour  had  an  immediate  consequence  in  his  aggression

towards Ms Carney. It follows logically from this that the appropriate reprimand and counselling that Mr Bradley would have been given would have placed considerable emphasis upon bringing that deficiency to his attention and counselling him to check his facts first before criticising other staff members. He should also have been counselled that any warranted criticism should not be made aggressively but calmly, rationally and courteously, although with the full authority of his office.

[47] A focus for the hypothetical inquiry undertaken ought therefore have been upon whether the incident involving the  appellant  would  have  been  avoided  had Mr Bradley been reprimanded and counselled in these terms. That focus would have triggered in the mind of the inquirer a recognition that the same behavioural deficiency attended the incident the subject of the litigation.   Again, Mr Bradley

acted upon his own misapprehension of circumstances;63 again, he failed to check his facts first; and again, he acted aggressively, instead of with authoritative courtesy.

[48]   I consider that the hypothetical inquiry undertaken by the primary judge miscarried for failure to identify the content of the reprimand and counselling that ought to have been given to Mr Bradley. This flaw deprives of legitimacy the ultimate conclusion reached from that inquiry.

[49] It will be recalled that the ultimate conclusion that his Honour reached was that it was more probable than not that Mr Bradley would have acted towards the appellant in much the same way even if he had been reprimanded and counselled.64 It is this conclusion that, in my view, ought to be set aside.

 

34         (2000) 49 NSWLR 262; [2000] NSWCA 29.

35         With whom Davies AJA agreed.

36         At [119].

37         With whom McMurdo P agreed.

38         [2001] 2 Qd R 119; [2001] QCA 275.

39         At [9].

40         (1998) 195 CLR 232.

41         (1993) 73 ALJR 782, 787, 797, 807; 197 CLR 269, 279, 296, 312.

42         Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157; [2001] QCA 223 para [10].

43         (1991) 171 CLR 506.

44         At [10].

45         With whom Handley AJA agreed.

46         [2007] NSWCA 238 at [20].

47         At [21].

48         [2006] QCA 335.

49         Reasons [278].

50         Ibid.

51         With whom Beazley JA concurred.

52         [2001] NSWCA 380 at [59].

53         At [22], [93].

54         (1984) 155 CLR 306.

55         Appellant’s written submissions paragraph 21.

56         At 313.

57         Mason, Wilson, Brennan and Dawson JJ.

58         At 314.

59         Reasons [125].

60         (1992) 176 CLR 408 at 420; [1992] HCA 27.

Brisbane Barrister – David Cormack

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