WCRA: plantar fasciitis – nil breach or causation

Prasad v Ingham’s Enterprises Pty Ltd [2015] QDC 200

Whilst it seems the plaintiff’s credibility did not assist in a finding in her favour, the claim was cruelled by causation obstacles, which fatally infected breach of duty. If there was any doubt as to the repeal of the provisions in Workplace Health and Safety Act 1995 providing a statutory duty His Honour McGill made it clear that there is none since the repeal.

McGill DCJ

[1] In early 2010 the plaintiff was a process worker at the defendant’s plant when she developed increasing pain in her feet.[1] By March 2010 her feet were so sore she was unable to continue her work, which she performed standing. She spoke to a supervisor and was referred to the medical centre at the plant, where she was treated with heat packs. She later attended doctors and a podiatrist, and it is common ground that she was found to be suffering from plantar fasciitis. She still has this condition, though her symptoms have abated somewhat after she ceased process work at the defendant’s plant, and received treatment. She is now doing a different type of work, and working only part-time: p 39. She alleged that she developed this condition because of the negligence or breach of contract of the defendant. Liability and quantum are both in issue; in particular, there is an issue as to causation.

Plaintiff’s credibility

[31] There were some aspects of the plaintiff’s evidence which I thought were unsatisfactory. On one occasion she appeared to agree in cross-examination with a proposition which was quite different from what she had said earlier in evidence.[24] I wondered whether this may have been due simply to her not properly understanding the questioning, but generally she appeared to be giving responsive answers, and there were other occasions when she disagreed clearly with propositions put to her in cross-examination.[25] In her evidence she distinguished between “trolleys” as shown in figure 9 of Exhibit 1, and “wheels” as shown in figure 8: p 94. She said that the former could be manoeuvred easily but not that latter (p 94) and that the wheels on the latter did not turn as easily when they were loaded: p 95.[26] Mr McDougall said that the design of the wheels of the things in figure 8 and figure 9 was identical: Exhibit 21 p 7. They certainly look the same to me, and I cannot see how there could be any difference in terms of ease of pushing.

[32] When shown the video Exhibit 19, which shows 14 crates on a set of “wheels” being pushed and manoeuvred without apparent difficulty, the plaintiff agreed that it was the same type of “wheels” as she pushed, but denied that the ones she pushed moved in the way shown: p 2-17. She claimed that the crates shown did not look fully loaded, but so far as I can tell they look loaded to me.[27] I found her explanation unconvincing. She claimed that there was always chicken pieces on the floor, and that, although they were cleaned up during breaks, as soon as they started work again the meat goes on the floor: p 2-24, 25. I also found that unconvincing. Besides, the loose chicken would drop in the area where it was being packed, as shown in Exhibit 1 photo 10, but it was surely rare in the areas where the chicken had been packed, and between there and the chiller. The plaintiff claimed at one point to be able to pack 100 trays with chicken a minute, which I cannot accept.[28] There was some inconsistency in her complaints to doctors about how long she could walk, noted above at [22]. It was not shown that the plaintiff was deliberately exaggerating her symptoms, or inventing them, but overall I am cautious about the reliability of her evidence.

Plaintiff’s pleaded case

[42] The plaintiff relied on the existence of the usual duties of care owed to an employee, and also pleaded the existence of certain obligations under the Workplace Health and Safety Act 1995, in particular that ss 28 and 30 of the Act imposed certain duties on the defendant, and ss 26 and 34C imposed certain obligations on the defendant.[34] The defendant relied on ss 37A and 197 of the Act as establishing that there was no cause of action for breach of statutory duty available to the plaintiff in respect of any duties imposed by the Act. I accept that the effect of those sections is that there is no cause of action for breach of statutory duty available to the plaintiff in respect of the duties imposed by the Act.

[43] A failure to comply with those duties and obligations was nevertheless pleaded as a particular of negligence, and it was alleged that it was an implied term of the contract of employment that the defendant would comply with its obligations pursuant to the Act. In circumstances where the Act itself imposed a regime leading to certain consequences by reference to the existence of an employment relationship, there is in my opinion no necessity to imply such a term in order to make the contract of employment efficacious, and in those circumstances the test for the implication of a term is not met.[35] Accordingly I do not accept that the contract of employment had the implied term alleged in paragraph 3(f) of the statement of claim.

[44] As to whether reasonable care at common law required the employer to comply with the duties and obligations imposed under the Act, in my opinion it would be inconsistent with the express exclusion of a cause of action for breach of statutory duty to say that the common law duty to take reasonable care extended to an obligation to comply with the Act. Despite the superficial attractiveness of the proposition that it must be reasonable for an employer to comply with a statutory obligation binding upon it as an employer, in circumstances where the effect of adopting the statutory requirements as amounting to reasonable care for the purposes of the common law obligation would be in substance to make a failure to comply with the requirement actionable for damages, contrary to the express provision of the Act s 37A, in my opinion that argument must be rejected.

[45] There may well be some overlap between circumstances which would give rise to a failure to take reasonable care at common law and those which amount to a failure to comply with a duty or obligation under the Act, but in my opinion one does not prove negligence at common law simply by showing that there was a failure to comply with some duty or obligation under the Act. At most, such a failure may be evidence of negligence. In this case however there was the further difficulty for the plaintiff that no specific breach of a specific obligation under one of these sections was shown. Arguing that a breach of an obligation expressed in general terms is evidence of negligence is not going to be helpful in showing that the employer was negligent in accordance with the common law test.

Causation

[51] It was submitted for the defendant in the present case that at best the plaintiff established that there was an increased risk of developing this condition because of the conditions in the workplace, but that that was not the same as showing that the particular condition suffered by the plaintiff was caused by those conditions. There certainly is a distinction,[37] but in circumstances here where there were a number of features of the workplace which, on the basis of the expert evidence led, were associated with an increased risk of suffering this injury, and where there were a number of other factors commonly associated with development of the condition which were not present in the case of this plaintiff, the evidence does support an inference that the combination of workplace conditions were a cause of the development of the condition on this occasion.

[56] Dr Halliday’s approach appeared to be that the existence of a causal relationship between these matters and the development of plantar fasciitis had not been demonstrated scientifically by methods of research which were appropriate for demonstrating the existence of a causal relationship. In those circumstances, it could not be regarded as a proposition which had been scientifically demonstrated. That approach may well be appropriate in the scientific and medical context, but it does not involve the application of the test that I have to apply. In my opinion the appropriate conclusion in the light of all of the evidence is that, more likely than not, the conditions under which the plaintiff was working were a cause of the plantar fasciitis from which she suffered. This involves a preference for the evidence of Dr Langley, Dr Werner and Dr Locke, and Mr Lane, and because of the absence of any significant explanation for the condition other than her work.

[78] The mere fact that there is some identifiable risk of injury, and that there was something which could have been done about it, does not necessarily mean that an employer was negligent if the employer failed to take that step. It is recognised that in some cases an appropriate response to a foreseeable risk of injury could be to do nothing. There is also the consideration here that, although plantar fasciitis is a relatively common condition, most of the factors with which it is or has been associated are factors which do not involve conditions in the workplace, and taking this step would not necessarily avoid the development of plantar fasciitis among workers. Further, some of the discussion in the material in Exhibit 21 of the hazards of standing appears to be related to the hazards of standing still in one particular position, rather than doing work which offers the opportunity from time to time to move around. The plaintiff’s evidence about the need from time to time to leave the workstation to stack and push trolleys, commonly several times a day at least, suggests that there was in practice some rotation away from standing still for an extended period, even apart from the formal breaks in that period.

[81] There is the further difficulty for the plaintiff, that the evidence of causation is very vague. It is one thing to say that the plaintiff was doing various things which increased the risk of plantar fasciitis, and those things together produced a cumulative increase in the risk, and that in those circumstances, and bearing in mind the absence of evidence of non-work based predisposing factors, the inference is open that it was a combination of the workplace activities which probably caused the plaintiff’s condition. It is another to say that any particular change in those workplace activities would probably have led to the plaintiff’s avoiding the development or seriousness of that condition. The medical evidence did not establish that any particular change would probably have produced a different outcome, even if it follows from the finding I have made that if all of the factors identified had changed there would probably have been a different outcome. In these circumstances, where the plaintiff has not proved negligence in relation to the presence of all of those factors, the plaintiff has failed to show any relevant causation. For that reason also, the plaintiff’s claim fails.

David Cormack – Brisbane Barrister & Mediator

NB:

Appeal dismissed on causation – Prasad v Ingham’s Enterprises Pty Ltd [2016] QCA 147 (7 June 2016)

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