The Corporation of the Synod of the Diocese of Brisbane v Greenway

This case considers the application of the “but for” test, for the purpose of s 305D of the Workers’ Compensation and Rehabilitation Act 2003, in circumstances where the trial judge had identified the appropriate test, but had not – as was apparent from the trial judge’s reasoning – in fact applied that test. The Court of Appeal considered the evidence and concluded that at its highest, it demonstrated no more than a “possibility” that but for the breaches of duty, the injury would not have occurred. In those circumstances, the appeal was allowed.

Morrison and McMurdo JJA and Bond J

26 May 2017

Here, the court examined whether the respondent had discharged her onus to prove that the damage she suffered was due to the appellant’s negligence under s 305D of the Workers’ Compensation and Rehabilitation Act 2003, and critically, whether factual causation had been established under s 305D(2).

At first instance, the respondent was awarded damages of $454,935.68 for a psychiatric injury (PTSD), found to have been caused by the appellant, in the course of her employment by it as a community support worker. [1]. Relevantly, she was subjected to verbal abuse and physical aggression by a 15 year old boy, while she was left alone with him as the only employee in an insecure residential care house overnight. [12]. That episode included his “kicking a window and brandishing a large shard of glass in a threatening manner and attempting to steal the keys to a staff car”. Ultimately the respondent managed to abate the boy’s behaviour, and then telephoned her supervisor to report what had happened. Her supervisor did not offer to relieve her from her shift nor send another worker to support her; and advised her against calling the police. [3]–[7]. Subsequently the respondent did not return to work. [8].

The trial judge found that the appellant was not negligent in failing to prevent the incident [11] but was negligent in its response to the telephone calls from the respondent. [15]. In that regard her Honour noted, for example, that the supervisor had only made one enquiry as to her welfare during the conversation- which in her view “placed inordinate responsibility on an employee who had just experienced a traumatic incident”. [13].

Factual causation

Materially, the appellant argued that on the available evidence, the respondent failed to prove factual causation (s 305D(1)). It submitted that the trial judge’s reasons revealed a legal error in her understanding of what was required and that in the absence of a proper understanding of that matter, it was not open to her Honour to have concluded that the breaches of duty were a necessary condition of the occurrence of the injury. [17]. 

An examination of her reasons indicated that she had characterised the matter as one which involved multiple contributing factors which it was not possible to “disentangle”. In her view the case involved “the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable” [34] (namely, the traumatic incident itself and the lack of assistance which followed it). Her Honour reasoned that the appellant had breached its duty by failing to adopt appropriate precautions such as implementing guidelines for and training of on call Team Leaders in assessing the welfare of workers subjected to traumatic incidents. She also noted that the evidence of psychiatrists was to the effect that the respondent had not been so overwhelmed by the incident itself that it was inevitable she would develop PTSD, but rather that staying in the house with the young person overnight and without support added an additional level of anxiety and this “would be seen as a contributing factor” to the injury by way of subjecting her to ongoing exposure to the potential of further harm. Having regard to that evidence her Honour accepted that it was “more probable than not” that the respondent’s breach of duty was a necessary condition of the applicant’s injury. [36].

Consideration

In the court’s assessment, the primary judge’s reasoning indicated that whilst she expressed her conclusion in the terms of s 305D(1)(a) she did not in fact answer the “but for” test: see Strong v Woolworths Ltd (2012) 246 CLR 182. [37], [38]. Because the trial judge did not answer the “but for” question it was necessary for the court to resolve it. [42], [44]. That enquiry involved a consideration of how the discharge of the appellant’s duty of care (to take whatever steps were necessary to protect the respondent from ongoing exposure to the potential of further harm) might have made a difference to the respondent’s experience of the night of the incident. In that regard, the court critically observed that the relevant psychiatric evidence “at its highest… proved no more than a possibility that, but for the breach of duty, the injury, as it was pleaded, would not have occurred” and importantly, each of the expert witnesses had attributed the injury to the incident itself (as distinct to the respondent’s experience in the aftermath). [45].

Given those evidentiary constraints, ultimately the court concluded that whilst the respondent had indeed suffered a serious injury at work it was not caused, in the required sense, by the breach of duty which was found by the trial judge. On the respondent’s pleaded case she had failed to prove that but for the breach of duty which was established, she would not have suffered a post-traumatic stress disorder. [51].

In the circumstances the court ordered that the judgment be set aside and the appeal allowed. [51].

A de Jersey