Australia: Employers score a goal: breach of duty of care not enough to establish liability against employers
Insurance alert

Carswell v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2012] QSC 253

Introduction

The Queensland Supreme Court has reminded plaintiffs that breach of duty alone is not enough to establish liability against employers.

Facts

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.

Decision

The Court considered two main issues in this case:

1. was there a breach of duty? In other words, was JR under his carer's supervision at the time of the incident? and
2. 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 the incident.

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.

Causation

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.

Quantum

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.

Implications

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.