WCRA: s.305D – failed causation for competing slipping scenario

Oxenham v Protector Aluminium Pty Ltd [2016] QDC 312

Long SC DCJ

The plaintiff, aged 16, claimed damages for personal injuries sustained in 2011 when he slipped in a toilet cubicle. As the plaintiff slipped from a standing position, he attempted to hold onto the toilet seat on the way down, however, the upper portion of a metal toilet roll holder struck him and entered his anus. The plaintiff underwent an operation the following day.

The decision highlights that while a risk may be found to have existed, which preventative measures could have eliminated, a plaintiff will fail unless factual causation can be established and in this instance under s.305D(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003.

Liability

The plaintiff’s claim rested on the contention that he slipped in the toilet because of water which had leaked from the office fridge and consequently remained on his boots.

The defendant denied the entire series of events and denied that the plaintiff had injured in the way described.

Long SC DCJ:

[20] It is not in contention that the fridge did leak some water onto the floor, although there is a dispute as to the extent to which it did so. However, it is common ground that the fact of some leakage of water onto the floor was known and that steps were taken from time to time to mop up the water and mitigation by use of rags and paper towels. In fact, it was the plaintiff’s evidence that he and others were tasked with doing so, as part of their duties.

[38] Accordingly and in this instance, the relevant risk is more appropriately that contended for the plaintiff, as the risk of a person coming into contact with the water, by stepping in it and consequently slipping and falling and suffering significant injury by contact with the tiled floor or another object in the vicinity.

[39] Such a risk was reasonably foreseeable as a matter of common sense and as much was conceded in the evidence of Mr Bruchez, who gave evidence as an employee of the defendant and a supervisor of the plaintiff on 13 April 2011, and as the rationale for his initiation of an approach and instruction as to the placement of rags or towels under the fridge and periodic mopping, to attempt to stop the spread of the leakage over the floor.

While the defendant had replaced the seal on the fridge after the incident, his Honour was not satisfied that the measures taken before the incident were acceptable:

[43] … it is appropriate to conclude that the defendant allowed a situation to continue, which sought to address the problem by an inefficient and apparently inconsistent system of the use of rags and towels and periodic mopping up of the moisture and which periodically allowed for water to leak and spread onto the tiled floor to a significant extent and which presented the risk of slippage and not insignificant injury to the plaintiff and other employees.

Causation

The plaintiff claimed that but for the water that leaked onto the tiled floor from the fridge, the plaintiff would not have slipped in the toilet. A competing cause for slipping was the plaintiff’s pants were around his ankles when he stood to move.

Finding that the plaintiff had not satisfied causation, his Honour found:

[52] In the circumstances, it is not simply a matter of acceptance of the plaintiff’s evidence of his sense of his boot slipping on the tiled surface, rather than tripping over his clothes.  It would be necessary to find that any such slipping of his boot was due, in some material way, to the remaining presence of water that had been collected near the fridge, on the sole of the boot. The plaintiff’s concessions that he had not noticed any sense of his relatively new boots slipping on the tiled surface, as he traversed the distance of approximately 6m to the toilet cubicle, before he used the toilet and then commenced the critical manoeuvres, underlines the inherent improbability of that explanation. In the circumstances, that contention is not established as being more probable than not and it should not be found that but for the plaintiff stepping in any water that was near the fridge, he would not have fallen and injured himself in the toilet cubicle and therefore, the plaintiff has not established factual causation, as required by s 305D(1)(a) of the WCRA.

Judgement was for the defendant, with a further hearing as to costs.

David Cormack – Brisbane Barrister & Mediator

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