By Georgina Wong

Sections 305D(1)(a) and 305D(2) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Recent Case of Psychiatric Injury from Workplace Assault

The Court of Appeal recently upheld an appeal lodged by an employer in The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 in relation to an injury sustained by a support worker arising from an assault by a care resident.

The employer operates a residential care facility under the name of Anglicare. Greenway was employed as a community support worker. On 25 August 2013, she was the only employee working at the facility during the evening. The only resident at the facility at that time was a 15 year old boy who had a history of drug use and aggression including conduct directed towards support workers.

The boy was verbally and physically aggressive towards Greenway during the evening. She managed to calm the boy down and put him to bed. She contacted her supervisor and was instructed to contact the relevant government department, the boy’s aunt and a glazier to repair a broken glass door. However, her supervisor did not offer her any further support such as to relieve her from the rest of her shift or to send another support worker to keep her company.

After her shift, Greenway did not return to work. She suffered anxiety and panic attacks and was diagnosed with Post Traumatic Stress Disorder (“PTSD”).

The Court found that the employer did not breach its duty of care for allowing the boy to reside at the facility or requiring Greenway to care for him on her own during the evening i.e. for the incident occurring.

Rather, the employer breached its duty of care as the support provided by the supervisor subsequent to the incident was inadequate. However, the critical question was whether that breach caused Greenway to sustain injury.

Psychiatrists Dr DeLeacy and Dr Chalk agreed that the critical incident was the necessary event that resulted in Greenway developing PTSD. The employer’s conduct subsequent to the critical incident likely increased the severity of that condition. However, both doctors agreed that it was unlikely that Greenway would have developed PTSD had it not been for the critical incident.

The Court of Appeal found that Greenway failed to prove factual causation under Section 305D(1)(a) of the WCRA as the employer’s breach in respect of her employer’s lack of support was not a necessary condition for the cause of Greenway’s PTSD. The Court of Appeal agreed that Greenway developed her PTSD as a result of the critical incident and there was no breach on behalf of the employer arising from the incident itself.

The trial judge found that the employer’s lack of support had materially contributed to the Plaintiff’s psychiatric injury. Whilst that was rejected by the Court of Appeal based on the evidence of Dr DeLeacy and Dr Chalk, the Court also noted that the Plaintiff did not plead Section 305D(2) and therefore a finding consistent with that provision was inappropriate.

Similar Past Cases

The Court of Appeal’s decision is similar to the findings of the Court in Mid-West Radio v Arnold [1999] QCA 20 where the expert psychiatrist in that case stated that a cause of the Plaintiff’s injury resulted an incident where her supervisor made a death against another person. No breach on behalf of the employer arose as a result of the death threat given that it was an act outside of the scope of employment.

However, the employer breached its duty as a result of the supervisor’s workplace bullying of the Plaintiff and her co-workers. Despite that, the expert psychiatrist could not disentangle whether the Plaintiff’s injury was caused from that bullying or from the supervisor’s death threat. The Plaintiff failed to establish factual causation in that case.

Likewise, in Lusk v Sapwell, [2011] QCA 059, the Plaintiff worked in an optometry and alleged that she sustained psychiatric injury as a result of a sexual assault by a customer who followed her into a back work room of a retail store. The trial judge found that the incident could have been prevented if the employer had provided a lock on the door to the back work room. The Court of Appeal rejected that argument as there was no indication that the Plaintiff would have locked the door behind her given there was no evidence that she felt unsafe during her prior dealings with the customer. The customer was 70 years old and the Plaintiff thought he was “pleasant” when she served him before the assault.

In Adeels Palace v Moubara [2009] HCA 48, the Plaintiff punched another patron during a New Year’s Eve celebration at a restaurant. The incident occurred at around 2.30am. The patron left and shortly returned with a gun and shot the Plaintiff. Prior to that, he shot another patron who was unconnected to the incident.  The Plaintiff argued that if the venue provided a security guard at the front door, then that would have prevented the patron from re-entering the premises to shoot him. The High Court rejected that argument, stating there was nothing to indicate that those measures would have prevented the Plaintiff from using force to enter into the premises given that he was determined to shoot the Plaintiff. That was demonstrated by the patron’s shooting of the random bystander in the restaurant prior to shooting the Plaintiff.

A similar reasoning was provided in response to the Plaintiff’s appeal in Coca-Cola Amatil v Pareezer [2006] NSWCA 45 where a vending machine employee was shot multiple times during a robbery whilst going about his normal duties. The New South Wales Court of Appeal held that the perpetrator acted so irrationally during that incident that any reasonable security measures would not have prevented the incident.

The Plaintiffs in all of the above cases failed to establish factual causation as the employers’ alleged breach did not cause the loss suffered. Under Section 305(1)(a), the breach must be a necessary condition to establish factual causation.

The exception is Section 305D(2) where factual causation can be established if it materially contributes to the injury. This provision would be relevant to injuries sustained over a period of time, the most obvious being psychiatric injury from bullying and harassment and workplace disharmony: see Hayes & Ors v State of Queensland [2016] QCA 191.

Connecting the Dots

For legal practitioners, factual causation is only too often forgotten in preparing personal injury cases. We are so focused on issues of duty, breach and quantum, that unfortunately to our horror, a case can painfully unravel before our eyes at trial when it becomes obvious that we did not connect the dots between breach and loss: see Tabet v Gett [2010] HCA 12; Schonell v Laspina, Trabucco [2013] QCA 324; Stitz v Manpower Services [2011] QSC 268.

So, how can we best prevent such a disaster from occurring? The answer is in making sure that you have the right evidence and plead appropriately. Here are some tips to help make that happen:

  1. Clearly identify the Plaintiff’s evidence regarding the cause of the injury
    • The Plaintiff’s statements
    • History provided to treating doctors
    • History provided to medical experts
  1. Thoroughly investigate with other witnesses whether the Plaintiff’s allegations regarding the incident/event are accurate.
  1. Get the most out of your medical expert by asking the right questions
    • What was the history of incidents/events?
    • The significance that the Plaintiff placed on each incident/event
    • The significance of the type of treatment that the Plaintiff sought in response to particular incidents and/or events
    • The relevance of any inconsistencies as identified in other witness statements or documents (i.e. incident reports, case management notes)
    • In the case of a critical incident / event for psychiatric injury, whether the Plaintiff would have avoided suffering the injury if there was additional support provided to him/her in the form of altering work rosters, duties or environment etc.
    • What was the significance of the employer’s actions after the critical incident/event and whether those actions materially contributed to the Plaintiff’s diagnosis of injury as opposed to exacerbating/prolonging the condition?
  1. Identify witnesses who will give evidence confirming that the breach caused or materially caused the injury. These could be lay or expert witnesses depending on the type of case. For instance, if the Plaintiff’s injury was caused by the sudden failure of equipment, the appropriate expert would be a mechanical engineer. If the injury was caused by multiple psychiatric stressors, a psychiatrist would be appropriate.
  1. Remember, the duty of care on behalf of an employer is to take reasonable care. For instance, employers operating in the aged care industry are not expected to conduct scientific testing of mechanical aides before every use. If such equipment fails unexpectedly, ask your liability expert what type of inspection would be necessary to identify the fault and would such measures be readily available for an employer to undertake.
  1. Make sure your pleadings include:
    • Relevant allegations of breach of duty;
    • How the breach caused the injury;
    • That the breach either caused or material caused the injury (i.e. Sections 305D(1)(a) and 305D(2);
    • The type of injury suffered from the breach.

The above list is by no means the “be all and end all” solution. The challenging aspect of law is that each case has its own unique characteristics and therefore you need to tailor your case accordingly. However, whatever you do, do not forget to connect the dots!

Have any questions regarding factual causation? Please do not hesitate to drop me a line on (07) 3211 2233 or georgina.wong@btlawyers.com.au