Carswell v Corporation of the Trustees of the Roman
Catholic Archdiocese of Brisbane  QSC 253
The Queensland Supreme Court has reminded plaintiffs that breach
of duty alone is not enough to establish liability against
The plaintiff, Ms Carswell, was a 53 year old disability support
worker for children with behavioural problems and intellectual
disabilities. The plaintiff sustained injuries to her face and neck
when she was hit by a soccer ball whilst supervising children at a
recreational camp run by the defendant. The plaintiff alleged that
the child, JR, was left unsupervised at the time and deliberately
kicked the ball at her.
The Court considered two main issues in this case:
was there a breach of duty? In other words, was JR under his
carer's supervision at the time of the incident? and
if there was a breach of duty, was that breach a material cause
of the soccer ball striking the plaintiff's head?
Breach of duty
In considering whether the employer had breached its duty,
Wilson J found that JR's carer, Mr Chaghoury, was neither
participating in the soccer game nor in any other manner
supervising JR when he kicked the ball which hit the plaintiff.
The ratio of carers to children at the camp was one to one, and
carers were told not to leave their child unattended at any time
unless they first informed another carer that they would be doing
so. The evidence showed that JR was a very troubled 13 year old boy
who had been diagnosed with a variety of behavioural disorders. He
had a history of violent and uncontrollable behaviour which made
him a safety risk to himself and others. The defendant was aware of
this, and the plaintiff also knew of JR and had met him at the
start of the camp.
The incident occurred after the carers and children had
concluded a 'formal' game of soccer. Some of the children,
including JR, continued to play with the ball after the game when
the plaintiff was hit by the ball. The plaintiff said that she did
not see JR kick the ball, and admitted that whether he did so
deliberately was 'debatable'.
The plaintiff and other carers who were in the vicinity did not
remember seeing Mr Chaghoury at the time of the incident. Upon
being interviewed, Mr Chaghoury said that he had no recollection of
In the circumstances, the Court found that the defendant had
breached its duty to take all reasonable precautions for the
plaintiff's safety and was vicariously liable for Mr
Chaghoury's failure to supervise JR or inform another carer
that he was leaving him unattended.
The Court was then required to consider whether, on the balance
of probabilities, the failure to supervise JR caused the plaintiff
to be struck and injured by the ball.
Wilson J found that the absence of supervision gave rise to a
risk, or added risk, that JR was more likely to engage in
anti-social behaviour. Her Honour concluded that there was no
evidence of anti-social behaviour, or of escalation in misbehaviour
at the time the ball was kicked. There was also no evidence that JR
had deliberately aimed the ball at the plaintiff or had acted
recklessly in kicking the ball. Consequently, there was no evidence
that the identified risk eventuated.
Therefore, the Court held that the plaintiff had not discharged
her onus of proving that the defendant's breach of duty was a
material cause of the harm she suffered. Judgment was found in
favour of the employer.
The Court was still required to provide an assessment of
damages, with the main issue being whether or not the
plaintiff's neck surgery and ongoing symptoms were caused by
the work-related event.
Wilson J concluded that the plaintiff's symptoms were due to
pre-existing degenerative changes and were not linked to the
workplace incident. Her Honour found that even if the plaintiff had
succeeded on liability, any damages she was entitled to would not
have exceeded the WorkCover refund.
This decision provides a useful reminder that the threshold for
establishing liability in personal injuries claims extends beyond a
mere finding that the employer breached its duty of care. In order
to succeed, the claimant must also show that the breach materially
caused the harm suffered.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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