Accident not caused by failures

Wolters v The University of the Sunshine Coast [2012] QSC 298
Applegarth J
5 October 2012

This is another case where the legal term of causation has been examined. The court found the employer breached its duty at common law and in contract by failing to adequately manage the behaviour of the supervisor following the event with the previous worker. However, the court held that the breach did not cause the claimant's loss, as it could not find that any action by the employer would have prevented the supervisor's actions on the day.

Background

The injured worker, a security officer at the University of Sunshine Coast, suffered a psychiatric injury as a result of the actions of the Director of the University's Capital Program and Operations (the DUCPO). There was an emergency alarm activated and the injured worker responded to being called into a room by a co-worker in relation a power outage as a result of the emergency alarm. The DUCPO discovered the injured worker and co-worker in the room and they alleged that he was being overly aggressive in insisting that they comply with the emergency procedures and raised his voice when asking them to leave and comply with the same.

Judgement

Applegarth J ultimately concluded that the claimant had been verbally abused in public by the DUCPO, his accusations were without justification and his hand gestures and the manner in which he conducted himself were aggressive.

In looking at whether the university has breached its duty of care to the plaintiff the judge focused on a previous incident involving the DUCPO where a complaint had been lodged about him by another employee. The judged made some finding in relation to the university's conduct in relation to this and concluded that by failing to investigate the other workers complaint and in failing to reprimand and counsel the DUCPO, the university breached its common law duty of care to the plaintiff and it also breached its contract with her.

However the judge found even if the DUCPO had been reprimanded and counselled, while reducing the risk of the DUCPO behaving in the way he did in relation to this event, he was not persuaded on the balance of probabilities that it would have avoided the incident involving the injured worker on 14 March 2008. His honour noted that the event did not occur in a normal office situation and that the DUCPO might have expected a security officer to accept robust criticism and emphatic direction. He also noted that the DUCPO was responding to what he thought to be a crisis and it was his perception that the claimant had abandoned her duties during a crisis.

Therefore the judge found that no matter what counselling may have been provided to the DUCPO in response to the incident involving the other employee, it was unlikely to have altered the DUCPO's response to the claimants perceived dereliction of duties at the height of a crisis.

The ultimate finding was that the University had breached its common law duty of care to the plaintiff, and that it breached its contract of employment. However, the claimant failed in proving that if the breach of duty had not occurred, the incident involving the DUCPO would have been avoided. Therefore the university's failures did not cause the incident.

The negligence claim was dismissed as the claimant had failed to prove causation but there was still the finding of the breach of contract. A nominal amount of damages was awarded at $100.00. This is because a plaintiff who cannot show real damage is entitled, upon proof of a breach of contract, to at least nominal damages.

Court of Appeal judgement

The injured worker, a security officer at the University of Sunshine Coast, suffered a psychiatric injury as a result of the actions of the Director of the University's Capital Program and Operations (the DUCPO). There was an emergency alarm activated and the injured worker responded to being called into a room by a co-worker in relation to a power outage as a result of the emergency alarm. The DUCPO discovered the injured worker and co-worker in the room and they alleged that he was being overly aggressive in insisting that they comply with the emergency procedures and raised his voice when asking them to leave and comply with the same. The ultimate finding of the trial judge was that the university had breached its common law duty of care to the plaintiff, and that it breached its contract of employment. However, the claimant failed in proving that if the breach of duty had not occurred, the incident involving the DUCPO would have been avoided. Therefore the university's failures did not cause the incident.

At appeal, the crucial issue was whether, had the employer provided appropriate counselling to the supervisor following a forceful verbal exchange with another co-worker, this would have prevented the supervisor from speaking to the Plaintiff in a similar manner six months later. In its decision, the Court of Appeal agreed with the trial judge that the onus remained with the Plaintiff to establish that had the supervisor been properly counselled after the first incident, the second incident involving the Plaintiff would not have occurred. The Court of Appeal found however that the trial judge had erred because he did not identify the form or content of the reprimand or counselling which would have been required to discharge the employer's duty. For this reason, the trial judgment was set aside.

The Court of Appeal then went on to find that the employer: “... ought to have reprimanded (the supervisor) in a way that highlighted that he had wrongly criticised a co-employee without first checking the facts upon which he based the criticism and counselled him to check facts first before attributing fault to a co-employee. The counselling should have also highlighted that when reprimanding a more junior employee for good cause, he should do so calmly, rationally and courteously, although with the full authority of his office.” According to the Court of Appeal's view: “Had (the supervisor) acted as he had been counselled, he would have checked first with (the Plaintiff) as to why she was in the co-worker's room and what she had been doing. That there was the exceptional circumstances of a power outage does not provide a sound basis for seriously doubting that he would have done so.” The Court of Appeal concluded: "... that it was more likely than not that had (the employer) taken appropriate action to reprimand and counsel (the supervisor), the incident with the Plaintiff would not have occurred.” The Court of Appeal therefore overturned the trial judge's decision and found for the plaintiff.