Wolters v The University of the Sunshine Coast [2012] QSC 298

Background

In an incident occurring on 14/03/2008 it was determined that during a power outage at the university an employee verbally abused another in circumstances where his behaviour was aggressive and unfair. To compound matters a similar complaint had been made against this employee in the past and it was not properly investigated. Whilst Applegarth J found the duty had been breached, His Honour was not satisfied as to causation.

Applegarth J:

Would the incident with Ms Wolters have been avoided if the University had taken appropriate action to reprimand and counsel Mr Bradley?

[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.[16] 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.[17]

[129] 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.[18] 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.[19] 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.[20] 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.[21] 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.[22]

[130] 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.[23]

[131] Ms Wolters submits that, as a matter of common sense, the University’s breach of duty caused the incident. She submits that Mr Bradley appears to be a person who has difficulty dealing with his anger and stress, and that it is likely if counselling had been performed in a proper way, or if anger management training had been offered, Mr Bradley would not have behaved in the way that he did on 14 March 2008. I have found that the University breached its duty by failing to reprimand and counsel Mr Bradley against behaving in the same way again. It was open to it to advise him to receive further counselling, including “anger management training”, but the evidence does not support the conclusion that the University was in breach of duty in not requiring him to undertake such steps, and there was no evidence about the efficacy of such training.

[132] During argument I raised the point that if Mr Bradley’s propensity to angry outbursts was as deeply entrenched as some of the evidence suggested, then it was difficult to conclude that proper counselling, even by the Vice-Chancellor who Mr Bradley respected, was likely to make a difference. In response, Counsel for Ms Wolters disclaimed my suggestion that her case was that Mr Bradley’s behaviour in yelling and waving his arms around was his “standard operating procedure”. She submitted that Ms Wolters’ case was that there were only two demonstrated events of this kind: one with Ms Carney and one with Ms Wolters. However, this submission did not address Ms Carney’s evidence about Mr Bradley’s habit of yelling at people.

[133] In deciding whether, on the balance of probabilities, a reprimand and proper counselling from the Vice-Chancellor would have avoided the incident on 14 March 2008, I have regard to the evidence about the effect of the general advice that Mr Bradley was in fact given. According to Mr Bradley, he heeded the advice. According to Ms Fuller, there was an occasion after the incident with Ms Carney in which Mr Bradley was able to restrain himself when he appeared “ready to explode”. Professor Thomas believed that Mr Bradley took on board the advice that he gave him, and said that he received “no formal evidence” to suggest otherwise. What other evidence he may have received was not explored.

[134] I find that Mr Bradley would have taken on board a reprimand and counselling that further, similar behaviour would not be tolerated. He would have tried to follow such counselling, especially if it had been given by the Vice-Chancellor. It is possible, even probable, that a reprimand and proper counselling would have significantly reduced the risk of Mr Bradley aggressively yelling at staff, particularly female staff, in the usual course of his administration.

[135] The issue, however, is whether, on the balance of probabilities, it would have avoided the incident with Ms Wolters. It is possible that it would have. However, I am not persuaded, on balance, that it would have. A reprimand and counselling might be expected to have some effect; otherwise it would not have been a reasonable response to the risk that Mr Bradley would yell at and verbally abuse staff, particularly female staff. However, I am not persuaded that it would have been effective to alter Mr Bradley’s behaviour towards Ms Wolters on

14 March 2008. This was not a normal office situation, and Mr Bradley might have expected a security officer to accept robust criticism and emphatic directions. According to Professor Thomas, Mr Bradley had been involved in past confrontations and raised his voice with security officers. Professor Thomas did not regard this as bullying because the security officers had provoked the situation and were “strapping ex-forces guys who raised their voices on a regular basis” and were “quite different from the normal people who populate universities”. Of course, Ms Wolters did not have that background, but her position as a security guard would have put her in a different category, so far as Mr Bradley was concerned, from a female office worker who might be less robust.

[136] More importantly, the incident did not evolve in the course of Mr Bradley’s normal duties in an office. He was reacting to what he perceived to be a crisis. He perceived Ms Wolters to have abandoned her duties during such a crisis. He reacted to the situation impulsively.

[137] A reprimand and proper counselling in response to the Heather Carney incident, even if administered a few weeks earlier, was unlikely to have altered Mr Bradley’s impulsive response to Ms Wolters’ perceived dereliction of duty at the height of a crisis.

[138] I am not persuaded that Mr Bradley would have acted differently once he saw Ms Wolters sitting in Ms Gould’s office. The confrontation would have been much the same. It is more probable than not that he would have acted towards Ms Wolters much the same way as he did. The incident still would have occurred and its aftermath would have been much the same.

[139] Ms Wolters has not proven that if the breach of duty had not occurred, and instead the University had taken appropriate action to reprimand and counsel Mr Bradley, the incident would have been avoided.

[140] Ms Wolters has failed to prove that the University’s negligence and breach of contract caused the incident.

Brisbane Barrister – David Cormack

NB: the decision has since been overturned on appeal:

Wolters v The University of the Sunshine Coast [2013] QCA 228

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