WCRA: no specific incident = failure to establish causation

Knott v The Withcott Hotel [2015] QDC 314

The plaintiff worked as a chef at The Withcott Hotel. She brought a claim against the Hotel alleging that she suffered an injury to her upper back during the course of her employment and subsequently developed a psychiatric disorder. It was alleged the injuries arose in consequence of the plaintiff completing her employment duties, which included, inter alia, putting away food deliveries and lifting various equipment. Relevantly, the plaintiff did not point to a specific incident which gave rise to the back injury, rather it was alleged that she felt pain whilst at work one day (25 March 2011) after putting food deliveries away.

Her Honour Bowskill QC found that an analysis of the employer’s system of work revealed precautions the defendant could have taken to reduce the risk of injury to the plaintiff, namely the task of putting deliveries away. Ultimately though, judgment was entered for the defendant because the plaintiff failed to establish that the failure to take such precautions caused her injuries as required by s 305D(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). As to issue of causation, her Honour Bowskill QC held that:

[151] In my view, that is lacking in this case. The court can only speculate as to whether, on 25 March 2011, the plaintiff lifted something heavy; for example, the potatoes. She can only speak in generalities, about what she may have done on this particular day. The court can see, from the invoices, what was delivered: it is inferred that Ms Ellis-Marshall would have assisted the plaintiff to put those deliveries away; they were not significant in terms of number of items, or weights of individual items (save for the half a bag of potatoes). On Mr Bachman’s evidence, the potatoes may well have been put in the storeroom. But even if it is assumed, favourably to the plaintiff, that on 25 March 2011 the potatoes were not put in the storeroom, but left in the delivery room; and further that it was the plaintiff that moved that bag into the storeroom; the evidence does not establish, on the balance of probabilities, that that activity (or indeed any other lifting activity) was a necessary condition of her experiencing pain, as required by s 305D(1)(a). The most contemporaneous record, being the GP’s note of 25 March 2011, recorded that the pain was “due to lifting left arm as a cook”. There was no evidence about what particular aspect of the plaintiff’s work involved her lifting her left arm specifically, but I do not infer from that note that it was referring to lifting heavy items. The next note, on 29 March 2011, did not attribute any cause for the pain, although recorded that the plaintiff was “working as a cook in a pub, lifting weights, not too heavy”, which likewise does not support the inference.

[152] More specifically, in terms of the language used in s 305D(1)(a), the evidence does not establish, on the balance of probabilities, that the breach of duty I have found (failing to take precautions to avoid the need for employees to lift heavy items, and failing to give clear instructions to employees about that) was a necessary condition of her experiencing pain. Put the other way around, I am not satisfied that if any of those precautions had been taken, the plaintiff would not have suffered the particular harm – because it has not been established that any aspect of the task of putting away deliveries caused the particular harm.

[153] The fact that she was at work when she noticed the onset of pain is not sufficient – because a temporal connection between the workplace, and the onset of symptoms, is not enough to establish the necessary causal connection.

[154] Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 is a case, like this one, where the plaintiff was unable to point to any particular aspect of the work that he undertook, on the day that he became aware of symptoms of discomfort in his back, which caused him injury.

[155] In Stitz, as here, the plaintiff was asking the Court to draw an inference that the injury was caused by the act or omission of the defendant amounting to breach of duty. As McMeekin J observed in that case:

“[111] The approach to take to causation in negligence suits was recently discussed by French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd. Of present relevance their Honours mentioned Hamilton v Nuroof (WA) Pty Ltd in these terms:

‘That case concerned the duty of an employer to adopt a safe system of work. The decision has been said to indicate that it may be unnecessary for a plaintiff to show exactly how the injury occurred if there be a defect in the system of work and it is clear that the injury arose out of the defective system.’

[112] Here it is shown that the injury occurred against a background of a defective system of work but it is not ‘clear that the injury arose out of the defective system’ in the sense of being caused by it.

[114] Here the plaintiff has shown that there may have been an increased risk of injury given the way the defendant conducted its works but that does not necessarily demonstrate that its actions in breach of duty did in fact cause the injury.”

[156] I am not satisfied that the facts as proved are sufficiently compelling to warrant an inference of causation being drawn. In so far as I have concluded there were “defects” in the system of work involved in putting deliveries away, it is not clear that the injury arose out of the defective system of work, in the sense of being caused by it. It cannot be said in this case that the facts warrant no other inference inconsistent with liability on the part of the defendant (see Stitz at [109]). In circumstances where the plaintiff was simply carrying out her usual duties; which she had not had any difficulty with before; and which neither she nor anyone else had complained of before; and where there was no particular incident that occurred on this day, there is a clear inference available that the plaintiff’s pain, which became noticeable to her after being at work for a short time, was caused by some other means, either unrelated to her work, or related to some aspect of her work in respect of which no negligence has been established.

David Cormack – Brisbane Barrister & Mediator

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