WCRA: Inadvertence & causation for an injury later complained of as arising out of the initial event

Souz v CC Pty Ltd [2018] QSC 36

McMeekin J

Background

The plaintiff claimed to have suffered a neck injury during the course of his employment with the defendant at Cook Colliery, an underground coal mine in June 2013. At the time of the incident, the plaintiff was driving a loader when the canopy of the loader collided with a steel beam erected across the roof of the mine causing the loader to abruptly stop. The plaintiff was thrown to his left, colliding with the steel frame of the loader (the “loader incident”).

The plaintiff contended that he was not aware that the canopy could be raised or lowered and that any movement of the canopy that day was inadvertent. The defendant denied liability, submitting that inadvertent raising of the canopy was not possible and that the plaintiff deliberately raised the canopy and forgot to later lower it.

Duty of care

Discussing whether the defendant breached its duty of care owed to the plaintiff, McMeekin J stated:

[21] … the probability that the injury would occur if care was not taken was high; the likely prospective injury from a 23 tonne vehicle colliding with a steel beam was serious; the burden of taking precautions was light. … it was incumbent on the employer to take reasonable measures to meet that risk of injury.

Finding a breach by the defendant, his Honour commented upon the plaintiff’s claimed inadvertence:

[22] … It has long been the law that employers are obliged to bring into account thoughtlessness or inadvertence by the worker in determining what precautions reasonable care demands be taken: Smith v Broken Hill Proprietary Co Ltd[7]; Da Costa v Cockburn Salvage Trading Pty Ltd[8]; McLean v Tedman[9]; Czartyrko v Edith Cowan University[10]. There is no indication that the WCRA has affected that fundamental principle.

[23] … An operator is constantly being thrown about as he or she traverses the roads. As well the operator variously stands and sits. It is entirely credible that an operator may not appreciate a change in height of what may have been only a few inches. The prospect of a gumboot catching on the lever was obvious. … The manufacturer had warned about the possibility of an accidental raising of the canopy.[14]

Causation

By January 2014, the plaintiff was diagnosed with a disc prolapse at the C6/7 level. The question for McMeekin J was whether the loader incident caused the disc prolapse. Discussing this, his Honour went on to state:

[29] The essential and determinative point is: what symptoms did Mr Souz experience between 26 June 2013, when the loader hit the overcast, and 25 October 2013, when it is common ground that there are symptoms present consistent with a frank prolapse of the disc?

[39] What is in issue here is factual causation. The plaintiff must show that “but for” the defendant’s breach of duty the injury would not have occurred.[21] The question here is whether the forces that acted on Mr Souz when the loader came to a sudden stop on 26 June did in fact cause or contribute to the prolapsed disc later found in his neck?

After a thorough examination of the evidence, McMeekin J referred to Wilson J in Cowen v Bunnings Group Limited[60] where his Honour discussed the role of the court in determining causation. In that case, Wilson J, referring to Kiefel J in Tabet v Gett[59], stated:

[22] The common law, her Honour said, requires proof by the person seeking compensation that the negligent act or omission caused the loss or injury constituting the damage; but all that is necessary for that purpose is for the plaintiff to show that, according to the course of common experience, the more probable inference arising from the evidence is that the defendant’s negligence caused the injury or harm. ‘More probable’ means, she said, no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. But it does not, as Kiefel J emphasised, require certainty.”[61]

In the present case, McMeekin J continued:

[98] I bear these considerations in mind. However the documents here of course are not documents independent of the plaintiff. Their accuracy is reliant on the plaintiff being accurate and complete in his explanation to the record taker. I have previously reflected on the factors impacting on the plaintiff. And these records have their limitations. They are generally short, cryptic and made for the purpose of dealing with the presenting problem not for providing full information for a forensic analysis of causation for examination later by a Court.

 

The crucial assessment for his Honour was whether the plaintiff was likely to have interpreted his treating doctor’s questioning as directed to the plaintiff’s recent symptoms, as opposed to the plaintiff’s symptoms following the loader incident. Although McMeekin J did not accept that possibility, his Honour found that it was improbable that evidence of five witnesses that the plaintiff was experiencing neck pain prior to October 2013 could be mistaken.

Ultimately, his Honour was prepared to find causation, stating:

[102] As well, in assessing the probabilities the fact of a major insult to the head, and so potentially then to the neck, quite capable of causing damage to the disc, in the loader incident strikes me as of considerable significance. Indeed Dr Campbell said that the incident as described to him (which matches closely to my impression from hearing all the witnesses) was “highly likely” to cause a neck injury.[65]

[103] Conversely a significant weakness in the defendant’s case is that there is no evidence of any event occurring on 25 October that was remotely likely to cause a large prolapse of a disc in the neck …

[105] In my view, while there can be no certainty about the finding, the hypothesis that the disc prolapse was consequent upon and relevantly caused by the forces involved in the incident of 26 June 2013 for which the defendant is liable can “reasonably be considered to have some greater degree of likelihood”, sufficient to satisfy the balance of probabilities test, than the defendant’s alternative hypothesis. For the purposes of this litigation I find causation to be established.

Judgement was given for the plaintiff against the defendant for $1,125,949.04.

David Cormack – Brisbane Barrister & Mediator

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