Wolters v The University of the Sunshine Coast

In this matter the Court of Appeal considered the issues of liability in negligence occasioned by omission and the relevant approach to determining whether or not the omission was causative of the claimed loss.  The circumstances in which the issue arose involved the negligent infliction of psychological harm.  In brief, the plaintiff had allegedly been verbally abused by a co-worker in a very unpleasant incident where the co-worker was said to have been rude and verbally aggressive towards the plaintiff.  The plaintiff claimed that she suffered psychiatric injury as a result.  It was alleged that the co-worker had engaged in similar behaviour with another employee in the past leading to that other employee seeking and obtaining workers’ compensation.  Consequently, it was claimed that the employer owed to the plaintiff a duty of care to prevent the risk of psychological injury arising from the conduct of the verbally aggressive co-worker.  The trial judge had found that the employer had breached its duty of care by failing to counsel the co-worker against the inappropriate behavior towards his fellow employees, but also held that it had not been shown that if there had been sufficient counselling that would have prevented the injury to the plaintiff.  In his reasons for judgment Gotterson JA (with whom the President and A Lyons J agreed) agreed with the trial judge that the mere fact that the breach of duty by the employer increased the risk that the plaintiff might suffer harm did not establish causation.  As his Honour identified, were that to be the case it would necessarily result in a reversal of the onus of proof.   What has to be shown, in a case where negligence by omission is alleged, is that in the hypothetical circumstance where the duty of care had been performed, the injury would have been avoided.  In the determination of whether or not the relevant causation existed his Honour observed that it is important to precisely identify the alleged duty of care and the content of that duty.  In the present case that required identifying the precise form of counselling that the employer was required to provide to the co-worker and that necessitated a consideration of what a proper investigation of the co-workers previous conduct would have revealed.  The Court held that had the prior incident been properly investigated, the co-worker would have been adequately counselled and that would have modified the co-worker’s behaviour which would have prevented the subsequent incident in which the plaintiff was injured.