WCRA: Lusk v Sapwell appeal allowed – nil breach of duty & causation

 Lusk & Anor v Sapwell [2011] QCA 59

I refer to my earlier postingregarding the facts and decision of Atkinson J. Muir JA provided the leading judgment, with which M Wilson AJA and A Lyons J concurred. Muir JA found the defendant/appellant had not breached its duty of care, but nevertheless addressed causation and found against the plaintiff/respondent as well. His Honour considered damages in the event of a further appeal and adjusted the plaintiff’s residual future earning capacity to 16 hours a week from 5 hours previously, based in part on the less than frank responses of the plaintiff.

Muir JA:

[18]

Citing Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422:

Look forward or look back?

[126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

[127] There may be more than one place where this risk of injury may come to pass. Because the inquiry is prospective there is no basis for assuming in such a case that the only risk to be considered is the risk that an injury will occur at one of the several, perhaps many, places where it could occur. Romeo was just such a case and so is this. In both cases there were many places to which the public had access and of which the Commission (in Romeo) and the Council (in this case) had the care, control and management. In Romeo, there were many places where a person could fall off a cliff; here, there were many places where a person could dive into water that was too shallow. Because the inquiry is prospective, all these possibilities must be considered. And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as “consideration of the magnitude of the risk and the degree of the probability of its occurrence”. It is only by looking forward that due account can be taken of “the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.

[128] If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was – diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.” (References omitted.)

[19] Reference was also made to these observations of Mason P in Coca-Cola Amatil (NSW) Pty Ltd v Pareezer:[3]

“In a case of breach by omission the plaintiff must clearly identify what should have been done and proved that it was unreasonable in the circumstances not to do it (cf Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 at 319). A breach inquiry is not satisfied merely by positing, with the benefit of hindsight, that something more might have been done.”

[20] The appellants complain that the primary judge failed to have due regard to the very low risk of an assault when considering the expense, difficulty and inconvenience of taking alleviating action. Relevance was placed on the finding that the risk of an assault “while foreseeable, [was] not very likely.”

Was there a breach of the appellants’ duty of care?

[21] Mr Jennings conceded in cross-examination that the subject business was not one that “incurred any special security or safety risks which would be the case in a retail shop where the product sold was of substantial value”. Ms Webber, the previous owner of the practice, gave the evidence referred to earlier that she had never felt threatened when in the store and that she had never heard of a staff member in an optometry shop being assaulted. She said also that she had never received any complaints from staff regarding their personal safety. There was no evidence of any assault on a female employee having taken place in an optometry shop and no evidence which might warrant the conclusion that such an attack might occur except by way of an entirely fortuitous random act of violence which might occur regardless of location.

[22] It does appear that the primary judge may have focussed unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of the appellants having regard to the prospect of the risk of injury. In Wyong Shire Council v Shirt[4] Mason J said:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

[23] Mason J then explained that a risk of injury which is extremely unlikely to occur may nevertheless constitute a foreseeable risk:[5]

“The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

[24] The appellants were entitled to regard the magnitude of the risk of assault and the probability of its eventuating as singularly slight.

[25] As well as the security solutions put forward by the primary judge, the respondent claimed that other security precautions which could or should have been taken were the provision of a simple sign warning that the premises were under video surveillance and/or the installation of a real or dummy CCTV camera.

[26] There are difficulties with all of the solutions put forward. The use of a door capable of being shut and locked or self closing door would not seem to be particularly practical where a receptionist or technician might, in the course of fitting or adjusting spectacles, be required, as Ms Webber explained, to make several brief trips from the front of the store to the workroom. She said that if there happened to be a door in premises between a work area and the public area “ … if you were adjusting a pair of glasses you would go back, work on the pair of glasses, then come back through to the dispensary where the patient is, so you’re in and out through that door potentially multiple times so the door would be left open.”

[27] The positioning of an infra red beam in the entry to the workroom would also be unlikely to confer any practical benefit. By the time the alarm was triggered by a person passing through the beam the person would be entering the small room and within reach of anyone in it or virtually so. Also the use of such a beam internally might be thought to be both unusual and odd in that the alarm would be triggered, virtually always, by staff members and, at times, the alarm would be triggered frequently. For this reason the female appellant did not consider the beam to be a practical option. Mr Jennings’ first report concluded that either repairs should have been carried out in the front of the shop or that there should have been a transparent door and window to the backroom. The report mentioned CCTV coverage but only as a means of permitting staff to view persons in the public area.

[28] The evidence did not suggest that Mr Jennings had any expertise in the workings of an optometry business and his opinion that employees in a business of the type in question should always be within the public gaze may be thought problematic. The work room, although cramped, contains a small kitchen, radio/CD player, bench and telephone. It served as a lunch and rest room and was used as “a personal storage area”, as well as a work room. Unless the testing room was not being used there was no other room in which the respondent could resort to eat, relax or attend to personal matters in privacy. The evidence does not suggest that the testing room when unoccupied could be used for such purposes.

[29] In his 29 April 2009 report, Mr Jennings expanded on his door recommendation, describing his preferred door as “a self closing sold (sic) door … with a necessity to have a key to open it from the shop side and either clear glass in the window above and behind the reception desk and a panic hold up button in the storeroom which would silently call Police via an alarm monitoring facility.”

[30] In cross-examination, Mr Jennings accepted that providing a lockable door “would simply increase the likelihood or the duration or the ferocity of an assault” if an attacker got into the backroom undetected. He accepted that there were “pros and cons”. Neither Mr Jennings, nor anyone else, gave evidence of the deterrent effect of an appropriately worded sign or of a commonly displayed working or bogus CCTV system in premises such as the subject premises or in any other premises for that matter.

[31] It is common knowledge that service stations, convenience stores and liquor stores in which such signs and devices are frequently seen are commonly burgled. Whether such devices, singly or in combination, would provide appreciable protection against the singularly slight risk of a staff member in an optometry shop being attacked is a matter on which this Court could only speculate. The primary judge saw no need to embark on such speculation and this court should take a similar course.

[32] In my respectful opinion, having regard to the magnitude of the risk of a female employee being assaulted and the absence of persuasive evidence that one or more of the precautions identified by the primary judge or advocated by counsel for the respondent was or were practical or likely to afford an employee an appreciable degree of protection from assault, it was not established that it was unreasonable of the appellants not to have taken any such precaution.[6] Nor was it shown, for the reasons already given, that the appellants were in breach of their obligation to take reasonable care to prevent the risk of injury to the respondent and it cannot be said that a safe system of work was not provided.

Was the respondent’s injury caused by any breach of duty on the part of the appellants?

[33] Having regard to the conclusion that the appellants were not shown to be in breach of their duty of care, the appellants must succeed on the appeal. But it is desirable nevertheless to address the question of causation which loomed large at first instance and on the appeal.

Causation

[34] The appellants contend that even if, as found by the primary judge, a lockable door or an infra red beam should have been provided it was probable that the attack would nevertheless have occurred. The respondent gave no evidence of what she would or would not have done had there been a lockable door or an electronic beam. Had such evidence been given it may have been of limited value in any event.[7] The evidence of Mrs Lusk suggested that it was unlikely that an employee such as the respondent, working in an environment which she had every entitlement to consider safe, would subject herself to the inconvenience of shutting and locking such a door in the circumstances under consideration. An obvious feature of those circumstances was that the offender was a seemingly perfectly respectable man aged about 70 who the respondent found to be “quite pleasant”. It was thus quite unlikely that, the respondent, when taking the offender’s spectacles to the workroom, would have secured herself against misadventure by locking the door behind her.

[35] For similar reasons it is doubtful that had an electronic beam been provided it would have been switched on at the time. For the reasons earlier advanced, it is also not possible to determine whether if such a beam had been operating the offender would have heeded it or that an assault would not have occurred.

[36] The primary judge disposed of the appellants’ arguments in relation to the door as follows:

“The defendant also argued that there was no evidence that had a self-locking door been in place, Ms Sapwell would have used it. However, this ignores the important fact that it is insufficient simply to put a security system in place, staff must be trained and required to use it. These are duties cast on an employer.”

This paragraph refers to a “self-locking” door not the lockable door referred to in paragraph [74] as one of the obvious ways to reduce the risk of assault. It may be accepted that if a self-locking door had been provided in fulfilment of the obligation to provide a safe system of work, it would have been appropriate for staff to be told to use it. It does not follow, however, that such instructions would or should have been to use the door regardless of the circumstances or that if such instructions had been given they would have been followed. Normally, employers will avoid placing unnecessary impediments in the way of the performance by employees of their everyday duties and employees can be expected to attempt to circumvent such impediments.

[37] Counsel for the respondent argued that the offender would have been deterred from instigating his attack had there been a sign warning of video surveillance, real or dummy CCTV cameras, a door, or an infra red beam. The respondent relied on the finding by the primary judge[8] that as the offender “ … knew that assaulting [the respondent] was wrong, he took advantage of the opportunity to assault her when she was out of sight of the public and more vulnerable. She did not face the same risk of assault from him, or indeed anyone else, while she was in public view.” The evidence, however, does not support the respondent’s counsel’s propositions and the primary judge did not find any element of prior planning in the attack.

[38] Dr Varghese, a psychiatrist, in a written opinion dated 9 June 2010 concluded that the assault was likely to have been impulsive rather than premeditated and that it tended to demonstrate a lack of judgment rather than predatory behaviour. In his opinion, “it would have made no real difference whether the [respondent] was situated in the back room or in the front portion of the shop at the time that [the offender] committed the assault.” In his view, the offender would not “even have been deterred from committing the assault had there been people within sight.”

[39] Dr Mulholland, another psychiatrist, said in a report dated 6 October 2009 that in his opinion the offender was probably dementing, that it was likely that the assault was impulsive rather than premeditated, and as it was likely that the offender did not think his actions through, it was possible, though less likely, that the offender could have assaulted the respondent when adjusting glasses in the front of the shop.

[40] In oral evidence Dr Varghese said that the offender’s capacity for self control was more likely to be affected than his capacity “for knowing the wrongness of an act”. A DVD of the offender’s police interview showed a man who was unable to maintain a train of thought and seemingly unable to articulate concepts of any complexity. Counsel for the respondent relied on this passage in the record of interview:[9]

HW: “Did the lady take the glasses to the back room on the other times that she had fixed the glasses?”

HW: “She did, did you follow her on those times?”

BB: “Not always.”

“Not always, had you followed her before?”

BB: “I had.”

HW: “You had, had she realized you had followed her before?”

BB: “No.”

[41] However, having regard to the offender’s obvious mental limitations and the fact that he was accompanied either by his wife or son on the previous occasions he was in the shop, his statement that he had followed the respondent before must be treated with considerable scepticism. Having regard to the considerations just discussed, I do not accept that the evidence established that if the appellants were in breach of their duty to the respondent, that breach was causative of the respondent’s loss and damage.

Damages

[63] The primary judge also considered that the respondent’s conduct in and concerning her job interview with Ms Crilly was not “fatal to her credit”. Her Honour explained:

“In a sense the resume and the job interview reflect both well and badly on her. It reflects badly on her that she did not freely reveal that she had been for the job interview and disclose the resume. On the other hand it reflects well on her that she was trying for a job no matter that her prospects of doing the job were not realistic. I have not formed the view that her failure to be frank about the job interview and disclose the resume is fatal to her credit.”

[64] Those conclusions to my mind suggest that the primary judge failed to appreciate the full implications of the respondent’s conduct. The respondent was less than frank when on oath about a matter which she must have realised had a substantial bearing on the outcome of her damages claim. When it became apparent to her that it was likely that the cross-examiner was aware of her job interview she disclosed it explaining, “Well, I’d actually forgotten about Franz, to be perfectly honest.” She then commenced to pretend that she didn’t know, that her meeting with Ms Crilly was a job interview. She first said, “I didn’t realise it was a job interview until I got there.” A little later she said, “I actually went to see if I could do it,” in response to the query, “But you went to the interview?” She later claimed, “It wasn’t really even an interview. Sharon just talked to me.” The substance of this evidence was contradicted by Ms Crilly whose evidence was discussed earlier.

[65] When this blatant dissembling is coupled with her failure to disclose her resume, and the difficulties with her evidence concerning her mental history it is impossible to regard the respondent as a witness of credit. In my respectful opinion, the primary judge failed to use the advantage she had over this court of seeing and hearing the respondent give evidence. The following observations of McPherson JA in Collings & Anor v Amaroo (Qld) Pty Ltd & Anor[14] explain the difficulties to which the respondent’s lack of credibility give rise:

“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth.”

[66] Fortunately for the respondent, her claims of inability to work until recently commencing part-time casual work with the University of Queensland received a substantial degree of corroboration from the medical evidence of the treating doctors. Counsel for the appellants argued that, for a substantial period, the respondent refrained from working because she was looking after her husband. The fact that she was caring for her husband does not negate the medical evidence of her unfitness for work and the primary judge made an appropriate adjustment to her award to take into account the length of time she would have been absent from work assisting her husband had she been able to work.

[67] In my view, however, the evidence does not support the award of $200,000 for future economic loss, the calculation of which was based on the premise that the respondent would be able to work only five hours per week.

[68] The primary judge explained her calculation of future economic loss as follows:

“I have based this on Scenario 1/ Residual B of Mr Thompson’s report on the finding that she has a residual capacity for work of 5 hours per week and that she would have worked until she was 65 years of age, which is calculated in Schedule J of Mr Thompson’s report. Her capacity to work in the future would not have been adversely affected by her husband’s injuries. If anything they would have it more rather than less likely that she would have continued to work to support the family. That amount is $261,181.00. This should be further discounted by 15 per cent to allow for the usual contingencies. The loss of future income is calculated therefore at $222,003.85 which I will round to $200,000.00 which takes account, inter alia, of the cost of travel to and from work.”[15]

[69] The evidence did not establish that the respondent’s future earning capacity as at the time of the trial was so impaired. She was then working part-time. She sought further employment without hinting to the prospective employer that she might have difficulty with the job should her application prove successful. Her resume asserted an unqualified readiness and willingness to work. When it was put to the respondent on cross-examination that she had told Dr Ewing that she had experienced a gradual recovery with treatment and that her recovery was complete, she did not deny it. Instead she asserted, in effect, that other medical practitioners had different views.

[70] The job for which the respondent was interviewed by Ms Crilly involved a minimum of 16 hours per week. The evidence was that the respondent felt comfortable with that. At the time of the trial the respondent was working two hours a week for the University of Queensland but there was an expectation that the hours would increase to up to 10 hours a week. The work could be done from home. There was some evidence of continuing psychiatric impairment and Dr Varghese was of the opinion that the respondent “would have great difficulty in working in a retail capacity but [that] she would be able to use her skills in some other setting”. In his report of 22 September 2009, Dr Mulholland gave the opinion that:

“Return to work in a back room situation as an optical technician is a possibility but it remains unclear whether she would be able to cope with same or not. Importantly there is the issue with her husband in that he is not well and they are now both on the Disability Support Pension. It sounds as though in many respects they look after each other although I think the reality of the situation is that Mrs. Sapwell is more of a carer for her husband than vice versa. Future work is probably not a realistic proposition because of the issues with her husband and in any event at 49 she is not getting any younger and increasingly the options are closing down.”

[71] These opinions, of course, were based on the information provided by the respondent. That information was likely to have been unreliable in material respects and the report was prepared more than two years before the respondent’s part-time employment and job interview. Dr Varghese’s report was dated 17 July 2008.

[72] Having regard to the matters just discussed, I regard it as reasonable to assess future economic loss on the basis that the respondent had the capacity to work up to 16 hours per week. Otherwise, I would adopt the data and calculations utilised by the primary judge. I am not persuaded that the findings on quantum should be otherwise disturbed.

M Wilson AJA

[75] I wish to add the following observations in relation to causation generally and in particular to this passage in the learned trial judge’s reasons –

“[87] The defendant also argued that there was no evidence that had a self-locking door been in place, Ms Sapwell would have used it. However, this ignores the important fact that it is insufficient simply to put a security system in place, staff must be trained and required to use it. These are duties cast on an employer.”

[76] An employer’s duty of care to his or her employee is non-delegable, and a high standard of care is expected. But the duty is not absolute. And in order to succeed in an action for damages for breach of that duty the employee must establish both the breach and that the employer’s conduct materially caused the injury.[16] Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.

[77] In Sutherland Shire Council v Heyman[17] Mason J said –

“When there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm. This is the approach which has been taken in the case, already mentioned, involving the liability of the occupier for damage resulting from his failure to guard against a danger caused by the positive and wrongful act of another and in the liability of the architect for injury caused to a worker as a result of the architect’s failure to inspect a dangerous structure: Florida Hotels Pty Ltd v Mayo;[18] Clay v A J Crump & Sons Ltd.[19] And it is the approach which underlies the liability of the defendant for breach of statutory duty to guard dangerous machinery.”

[78] On the assumption the appellants breached their duty of care by failing to provide one or more of the safety devices for which the respondent contended, it remained for the respondent to prove that she would have made use of such device or devices. In Quigley v Commonwealth [20] Mason and Aickin JJ said –

“The issue then is whether there was evidence on which a jury could determine that the respondent’s failure to provide a safe system of work caused or contributed to the accident. Where a defendant fails to provide a safe system of work, it is for the plaintiff to show that the appropriate safety measures would have been effective and that he would have made use of them had they been available (see Duyvelshaff v Cathcart & Ritchie Ltd [21]).”

And in Duyvelshaff v Cathcart & Ritchie Ltd[22] Gibbs J said –

“On the issue of causation it was for the plaintiff to satisfy the Court that his injuries were caused by the defendant’s omission to provide a safe place or system of work or to perform his statutory duty. To do so he must show that the safety measures would have been effective and that he would have made use of them if they had been available (Qualcast (Wolverhampton) Ltd v Haynes;[23] McWilliams v Sir William Arrol & Co Ltd.[24] As a consequence of these and other decisions the dictum in Roberts v Dorman Long & Co Ltd[25] that the employer cannot be heard to say that the employee would not have used the safety equipment if it were provided, cannot be supported as a correct statement of the law relating to causation, either in its application to common law negligence or a breach of a statutory duty requiring the provision of a safety belt.

It is readily apparent that the use of a safety belt would have avoided the occurrence of the injury to the plaintiff. But it was for the plaintiff to prove that he would have used a safety belt, had it been supplied with the ladder.

In general it would be easy to draw the inference that the plaintiff would use a safety belt if it were available, that being the course which a reasonable person mindful of his own safety would take. But here there are circumstances which persuade me that such an inference should not be drawn.”

Brisbane Barrister – David Cormack

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