WCRA: Inghams – breach & causation not made out

Fofana v Inghams Enterprises Pty Ltd [2014] QDC 224

The plaintiff’s claim failed because of the finding of fact that the reconfiguration of the “skinner station” took place prior to the plaintiff’s injury. Hence, breach and causation were not made out. Otherwise, Dr Campbell was preferred over Dr Tuffley and Dr Goode’s evidence was questioned and not accepted.

R S Jones DCJ

Liability and causation

[8] The evidence establishes that the plaintiff had a back injury, the issue is then whether the defendant is legally responsible for that injury and required to compensate the plaintiff.

[9] Of course it is not sufficient to simply point to a breach of duty of care on the part of the defendant for the plaintiff to succeed. Factual causation has to be established. That is, proof is required to establish “that the defendant’s negligence was a necessary condition of the occurrence of the particular harm.”[3] As Heydon J stated in Strong v Woolworths,[4] causation is an element of the tort of negligence on which the plaintiff bears the onus of proof.

[10] In Wolters v University of Sunshine Coast[5] Applegarth J relevantly said:

“128. 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 probabilities that the defendant’s breach caused or materially contributed to the harm actually suffered. The onus remains on a plaintiff to prove that the harm in fact resulted from the risk, or increase to the risk, created by the defendant’s breach of duty.

  1. Questions of causation depend on hypothetical considerations, but unless these issues are resolved in the plaintiff’s favour, on the balance of probabilities, the court cannot be satisfied that the conduct of the defendant caused the loss. In a case such as the present the plaintiff must prove that performance of the duty would have averted the harm, and this depends on the probabilities for and against. It is not sufficient to establish causation that the defendant’s breach of duty increased the risk of injury. All relevant circumstances, including an increase in the risk to the plaintiff from the defendant’s breach of duty and the character and sequence of events, must be considered in deciding whether a defendant’s breach of duty which is a possible cause of the plaintiff’s damage materially contributed to that damage. In some cases breach of duty coupled with an incident of a kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the incident did occur owing to the act or omission that constitutes the breach of duty. In such a case, the inference leading to liability on the part of the defendant is more probable than any other inference. But the onus always remains on the plaintiff to prove causation. The mere fact that a breach of duty has occurred, followed by injury within the area of foreseeable risk, does not necessarily mean that the evidential onus is reversed.
  2. The question of causation is not answered by pointing out that the relevant duty was to take reasonable care to prevent the very kind of injury that has transpired. A plaintiff does not succeed merely by showing that certain steps might have prevented the injury from occurring.

  1. The law requires that a plaintiff prove that a defendant’s conduct materially caused the injury. In law, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. A person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury. The mere fact that injury would not have occurred but for the defendant’s act or omission may not be enough to establish a causal connection for legal purposes. …
  2. If, however, the incident did cause her injury, then it need not be its sole cause. Causation will be established if the relevant act or omission contributed materially to the damage suffered. The law recognises that concurrent or successive acts may each amount to a cause of the injury suffered by the plaintiff.
  3. Questions of causation are resolved by applying common sense to the facts of each case. Value judgments are involved. …” (Footnotes omitted).

[11] In Curtis v Harden Shire Council the New South Wales Court of Appeal was concerned with statutory provisions concerned with the concepts of “factual causation” and “scope of liability”. Relevantly Bathurst CJ stated:[6]

Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 involved a claim against the appellant for the incorrect positioning of the stop sign which it was said led to an accident at a ‘T’ intersection. Gummow, Hayne and Heydon JJ in a joint judgment rejected reliance on Betts v Whittingslow supra. They referred to the fact that after the passage in the judgment of Dixon J cited by Beazley P, his Honour said that in the case before him ‘the facts warrant no other inference inconsistent with liability on the part of the defendant’. They pointed out at [31] that in the case before them there were other inferences available. Kiefel J at [139] referred to the same passage in the judgment of Dixon J and emphasised at [143] that it remained a requirement of the law that a plaintiff prove a defendant’s conduct materially caused the injury. So much is made clear by s 5E of the Act.

In Kuhl v Zurick Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, French CJ and Gummow J at [50] referred with approval to the remarks of Kiefel J in Roads and Traffic Authority v Royal supra. They pointed out that what was contended for by the appellant in the case before them was not the only inference that could be made. Although their Honours were in dissent as to the result, the majority placed no reliance on Betts v Whittingslowe supra…

As is apparent from the evidence summarised by each of Beazley P and Basten JA, there are logical inferences contrary to those contended for by the appellant. It was for the appellant to prove on the balance of probabilities that the inference contended for should be drawn. It cannot be inferred from the nature of the breach.”

 

[12] Before going further it is necessary to deal with two of the expert witnesses called, Dr Goode and Dr Ludcke. Dr Goode was a specialist occupational physician called on behalf of the defendant. Approximately 60% to 70% of his professional work was associated with preparing medical legal reports, much of it for employers. Dr Goode described much of this work as “fitness for duty assessments”.[7] It was a part of his thesis that the plaintiff had a longstanding back history including lower back pain and sciatica going back as far as 2006. He had made no physical examination of the plaintiff nor had he spoken to her. Instead his assessment was based on an analysis of past medical records. On balance I find myself unable to give Dr Goode’s evidence much weight for the following reasons. First, as I have said he had neither examined nor interviewed the plaintiff and, in addition to that, the medical records to which he had regard were not without controversy. That controversy will be discussed in more detail below when dealing with the evidence of Dr’s Campbell and Tuffley. Second, I found the doctor’s evidence to lack the necessary degree of objectivity. He displayed a reluctance to reveal just how much of his practice was concerned with the treatment of orthopaedic injuries. He also made a number of inappropriate and/or irrelevant references to what employees might or might not have to put up with in “third world countries” and, on one occasion, rather facetiously suggested that the process work the plaintiff carried out for the defendant might have actually improved her back condition.

 

 

[26] On balance, I much prefer the evidence of Mr Bissett on this matter where it conflicts with that of Ms Leayee and the plaintiff. As I have said it was corroborated to varying degrees by other witnesses and Mr Bissett had very good reasons to know when the changes occurred. It is true that Ms Leayee’s description of how the skinner station functioned was consistent in a number of respects to that given by the plaintiff. However, her evidence on this topic was not very convincing, perhaps not surprisingly given that she only worked for the defendant for two weeks from 11 August 2010 to 24 August 2010 and for at least in part of that time she was in training.[37] As for the plaintiff I am left with the clear impression that she was simply mistaken about the nature and extent of the changes to the skinner station that were in place on her return from maternity leave.

 

 

[36] On balance, I also prefer the evidence of Dr Campbell as to the extent of the plaintiff’s current back condition. Neither Dr Campbell nor Dr Tuffley were materially shaken in cross-examination. However, there is other evidence that tends to support Dr Campbell’s assessment of a more serious back condition that is not present in the case of Dr Tuffley. There is the evidence of the plaintiff’s husband and the plaintiff herself. As I have already referred to, the plaintiff was and still is a woman who does not shirk work. She worked steadily from April 2007 before taking maternity leave late in her pregnancy in December 2009. Her son was born on 17 January 2010 and she returned to work on the skinner and feeder stations on 1 July 2010 before being placed on lighter duties in early September 2010 after complaining about her back. She was then on WorkCover and after leaving the defendant in December 2010 and after completing training she is now a self employed child carer. I have already expressed my concerns about Dr Goode. However, I note that after reviewing her medical history he also expressed the view that “now” her level of impairment was in order of 5% to 8%.[52] None of this evidence either separately or in combination is determinative but it does in my view tend to support the opinion of Dr Campbell and contradict that of Dr Tuffley.

[37] The evidence was that the work carried out by the plaintiff at the feeder station alone was an unlikely cause of the injury.[53] However, it was clear from the evidence of both Dr Tuffley and Dr Campbell that the repetitive nature of the process work carried out was a likely cause of back trauma. According to Dr Tuffley non permanent musculosketal aching.[54] According to Dr Campbell musculo-ligamentious injury to the lumbar spine.[55] According to Dr Campbell the level of back strain or loading to the back would have been increased by the plaintiff having to work from a stand with a limited surface area.[56]

 

[45] As alluded to earlier, notwithstanding the raft of allegations of negligence contained in the Further Amended Statement of Claim and in paragraph 1 of Mr Morgan’s written submissions, the plaintiff’s case largely centred around the work that was required to be carried out at the feeder station and the changes to the height of the conveyor belt at the skinner station. In Mr Morgan’s written submissions under the heading “Breach and Causation” the following assertions were made[62]:

“The undeniable fact is that the Plaintiff worked 40 hours per week standing up all day at a conveyor belt until she was eight months pregnant and did not have back pain prior to going on maternity leave or during it. So objectively, there is support for the proposition that her back pain was temporally related to the return to work from 1 July. The repetitive nature of that work at the Skinner or the Feeder in awkward postures with inadequate breaks, allowing for the added factors of having to stand on a stand, without the ability to move laterally, causing greater forces to be applied to the spine, with the height of the Skinner station having been raised, and adopting the postures at the Feeder shown in figure 12 of the Ludcke report and in exhibit 5 caused back injury.

The combined evidence of Dr Ludcke and Dr Campbell supports a finding of causation between work practices and the injury. Even Dr Goode and Dr Tuffley accept the possibility of causation between the workplace activity and pain symptoms. Dr Tuffley would not accept it would lead to injury, though Dr Goode accepted the reality of progression from exacerbation to aggravation resulting in permanent change (T3.15).

Dr Ludcke’s evidence is that the risk of injury could easily have been avoided by modification of the skinner station (which later happened), rotation to sedentary tasks rather than from repetitive to repetitive tasks, elimination of the Feeder task, varying the work posture to allow workers to sit, providing wider stands to allow lateral movement and thereby avoid the range and severity of forces applied to the back, encouraging early reporting of injury symptoms and management of workers returning from periods of prolonged leave. There had been a Risk Assessment in 2007 but it didn’t discuss controls and hadn’t implemented any. The defendant’s witness Horgan/Hogan said Risk Assessments and Safety Audits were done before and after new equipment was put in but no such documentation was produced which indicates any such system was more theoretical than actual, or more honoured in the breach than the observance.”

[50] The plaintiff’s case against the defendant was materially dependant upon the skinner station not providing for a safe system of work and, in fact, providing for an even worse system of work from 1 July 2010 until the date of injury. In fact the contrary proved to be the case due to the plaintiff’s mistaken recollection about when and how the skinner station was reconfigured.

[51] The highest the plaintiff’s case could be put was that she was required to carry out work which exposed her to the risk of back injury and was the material cause of her injury. Many forms of employment, particularly those involving manual labour, involve an element of risk of work related injury. The critical question was whether the employer has met its responsibility to safeguard its employees from unreasonable risks of injury. What would constitute a reasonable level of precaution would of course be influenced by the level of danger inherent in the work to be done. Of particular relevance in this case was the duty of the defendant to provide safe plant equipment and system of work.

[52] The fact that the plaintiff probably suffered a work related injury was not enough. As the cases referred to establish, the plaintiff must be able to prove on the balance of probabilities that the defendant’s conduct involved a wrongful act or omission that caused or materially contributed to the injury suffered. In this case it was at the least equally open to infer that the injury was not the consequence of any breach of duty on the part of the defendant but was simply an unfortunate work related injury resulting from the cumulative effects of the plaintiff’s work from April 2007 to December 2009 and 1 July 2010 to September 2010 together with, as Dr Campbell reported, other non work related activities.

[53] The evidence in this case leads me to make the following findings:

  1. The plaintiff suffered a back injury of the kind diagnosed by Dr Campbell.
  2. The plaintiff’s work was a material but not sole cause of that injury.
  3. Prior to the injury the plaintiff now suffers from, she had no back injury or pain of significance.
  4. The back pain was temporally related to the plaintiff’s return to work on 1 July 2010 but only to the extent that after that date was when her injury manifested itself and was eventually reported in September 2010.
  5. The plaintiff’s injury was probably related to a cumulative and increasing pre-disposition to injury from April 2007 to December 2009 and from 1 July 2010 to September 2010.
  6. The plaintiff has failed to prove on the balance of probabilities that the injury was due to any breach of duty on the part of the defendant as alleged.

[54] The defendant has successfully defended itself against the case pleaded against it and accordingly the plaintiff’s claim must be dismissed.

David Cormack – Brisbane Barrister & Mediator

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