Contributing factors to the failure to prove causation
Did the employer’s breach of duty cause the worker’s injury within the meaning of s 305D(1) of the WCRA.
On the evening of 25 August 2013 Ms Greenway was working alone supervising a 15 year old boy, who was then the only resident of a care facility operated by Anglicare. The boy became verbally and physically aggressive to Ms Greenway including kicking a window and brandishing a large shard of glass in a threatening manner. Ms Greenway, who was in contact with her supervisor during and after the incident, successfully de-escalated the situation. The supervisor did not call the police, offer to relieve Ms Greenway from her shift or send another support worker to assist her. Ms Greenway completed the remaining 8 hours of her shift but was then unable to return to work due to Post Traumatic Stress Disorder.
Ms Greenway subsequently sought damages from Anglicare for its alleged negligence in failing to prevent the incident and failing to adequately respond after it occurred.
The Decision at Trial
The primary judge was not satisfied that Anglicare had negligently failed to prevent the incident but did find that it had breached its duty of care to Ms Greenway by failing to adequately respond to the incident after it occurred.
Ms Greenway’s pleaded case with respect to causation, which relied on s 305D(1) of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA), was that Anglicare’s breach of duty was a necessary condition of the occurrence of her psychiatric injury.
Having regard to the expert medico-legal evidence of Dr Chalk and Dr de Leacy, the primary judge accepted that Anglicare’s failure to provide support after the incident was “a contributing factor” to the injury and that it was more probable than not that the breach of duty was a necessary condition of the injury.
The Issues on Appeal
The sole issue on appeal was whether or not the primary judge had erred in relation to finding that factual causation had been established pursuant to s 305D(1) of the WCRA.
The Decision on Appeal
The Court of Appeal held that the primary judge had erred in making findings in relation to causation by failing to apply the “but for” test, which required consideration of how the discharge of Anglicare’s duties would have made a difference to Ms Greenway’s experience. The medico-legal evidence was crucial to this question. Notably, the experts agreed that the incident involving the boy was the primary trigger for Ms Greenway’s PTSD and that Anglicare’s lack of response was an additional stressor. Neither expert opined that Anglicare’s response to the incident was an essential condition for the occurrence of her PTSD. In other words, there was no evidence that, but for Anglicare’s failure to support her after the incident, Ms Greenway would not have suffered PTSD.
Further, because Ms Greenway did not plead that her PTSD had been aggravated by Anglicare’s negligence, she could not establish causation against Anglicare on the basis that the expert evidence suggested that her PTSD would have been minimised.
Implications for you
This decision of the Queensland Court of Appeal adds to the growing body of authority which discusses the requirements for factual causation which has been embodied in the WCRA and the Civil Liability Act 2002. It reiterates that the “but for” test is the first gateway to proof of causation except in exceptional cases. Advocates must be conscious of the burden they confront in establishing proof of causation and carefully consider the nature of the evidence. If a case falls within the exceptional category, advocates ought to plead that so that the court may give consideration to whether or not and why responsibility for the injury should be imposed on the party that breached its duty.