ESTABLISHING CAUSATION – ‘COULD’ OR ‘MIGHT’ IS NOT ENOUGH
June 10, 2016
Prasad v Ingham’s Enterprises Pty Ltd  QCA 147
Roselyn Prasad (‘the plaintiff’) alleged that she had developed plantar fasciitis due to the negligence of her employer, Ingham’s Enterprises Pty Ltd (‘the defendant’). At first instance, the Queensland District Court found that although the plaintiff’s work conditions were a cause of her injury, the plaintiff failed to establish that the defendant was negligent, and that the counter measures available to the defendant would have prevented her injury.
The plaintiff appealed the decision to the Queensland Court of Appeal, which held:
- The defendant did breach its duty of care to the plaintiff when it failed to undertake a risk assessment upon removing rubber matting from the plaintiff’s work area.
- If the defendant had conducted a risk assessment, the exercise of reasonable care would have favoured the implementation of measures such as anti-fatigue matting into the workplace.
- Nonetheless, there was no evidence that any measure adopted by the defendant would (as opposed to ‘could’, or ‘may’) prevent or minimise the plaintiff’s injuries.
- The plaintiff had failed to establish a causal link between the defendant’s negligence and her injuries.
The plaintiff’s appeal was dismissed.
District Court decision
The plaintiff worked five days per week at a chicken processing plant at Murarrie, where she mainly packed chicken pieces into plastic trays. The area where the plaintiff worked had a concrete floor and was cooled to 13 degrees Celsius. The plaintiff’s uniform included a set of Wellington boots, which she wore in a larger size than usual to allow her to wear two pairs of socks.
When the plaintiff commenced work for the defendant in 2000, there were rubber mats placed on the concrete floors. However, those mats were removed by the defendant in 2006 for health and safety reasons. In March 2010, the plaintiff reported pain in her feet, which was subsequently diagnosed as plantar fasciitis.
The plaintiff alleged that the defendant knew, or ought to have known, that:
- Wellington boots offered poor protection for a worker standing on concrete;
- Walking, standing, lifting and pushing trolleys with defective wheels while wearing those boots on a concrete floor caused stress on the plantar fascia, a factor in causing plantar fasciitis; and
- Standing on rubber mats reduced the risk of workers suffering plantar fasciitis.
Notwithstanding that knowledge, the defendant removed the rubber mats without conducting a risk assessment.
At first instance, the primary judge did not accept that the removal of the rubber mats, or the failure to undertake a risk assessment, constituted negligence on the part of the defendant. The primary judge found that the plaintiff had failed to establish that:
- A risk assessment would have led to the conclusion that the mats ought not be removed, or that anti-fatigue matting should be provided;
- The hardness of the concrete, as distinct from the mere fact of standing, was crucial in the development of her condition;
- If the rubber mats had been left in place, or alternatively, had anti-fatigue matting been provided, on the balance of probabilities it would have prevented or minimised the plaintiff’s condition; and
- Any particular change in the workplace conditions would on the balance of probabilities have led to the plaintiff avoiding the development or seriousness of her condition.
Court of Appeal decision
On appeal, the plaintiff submitted that the trial judge erred in finding that:
- In order to show negligence, it was necessary for the plaintiff to show that if there had been a risk assessment undertaken, it would probably have produced a result different from the result that actually occurred (that is, removal of the mats);
- The defendant was not negligent. The primary judge ought to have found that the defendant breached its duty of care by removing the mats, failing to conduct a risk assessment or failing to replace the rubber mats with different mats.
- There was no relevant causal link between the plaintiff’s personal injuries and the breach of the defendant’s duty of care; and
- The medical evidence did not establish that any particular change in the workplace conditions would probably have produced a different outcome.
In response, the defendant submitted that in order to succeed, the plaintiff had to establish that the measures the defendant failed to adopt would ‒ rather than ‘could’ or ‘might’ ‒ protect the plaintiff from injury. The defendant relied on the decision in Woolworths Ltd v Perrins  QCA 207.
In concluding that the plaintiff had failed to establish causation, Boddice J noted:
- Determining whether the defendant breached its duty of care included consideration of whether the replacement of rubber mats, or other measures, more probably than not would have prevented or minimised the injury sustained by the plaintiff;
- The defendant did (emphasis added) breach its duty of care by failing to undertake a risk assessment when removing the rubber mats. Had the defendant done so, the exercise of reasonable care would have favoured the implementation of other measures, such as anti-fatigue matting.
- The plaintiff had to establish more than the mere existence of an association between the defendant’s breach of duty and the occurrence of her condition. To succeed, she must show, on the balance of probabilities, that the measure the defendant failed to adopt would have prevented or minimised her injuries.
- While the total expert evidence identified control measures which may lower the risk of plantar fasciitis, none of the experts could say that those measures would prevent that condition; and
- The plaintiff had accordingly failed to establish a causal link between the defendant’s negligence and her injuries.
Fraser and Philip McMurdo JJA substantially agreed with the reasons of Boddice J and the plaintiff’s appeal was dismissed.
The decision of the Court of Appeal confirms that in order to establish a causal link between a defendant’s negligence and a plaintiff’s injury, it is not sufficient to show that a potential measure available to the defendant ‘could’ or ‘might’ have prevented the plaintiff’s injury. A plaintiff must show that, but for the defendant’s negligence, on the balance of probabilities the risk of injury ‘would’ have been prevented or minimised.
Authored by Jessica Pendlebury, Senior Associate and Scott Cowell, Partner – Brisbane
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