Beware of failing to establish the inferential reasoning required for causation
6th Sep 2018
Inghams Enterprises Pty Ltd v Kim Yen Tat  QCA 182 – Bond J with Gotterson and Morrison JJA agreeing
The plaintiff was successful before the trial judge in her claim for sustaining a psychiatric injury after being accosted in a car park by a former employee late at night, after finishing her shift. The car park was controlled by the plaintiff’s employer and had a security guard, albeit at the entrance to the business premises of the car park. The security guard did not have a view of the car park but was assisted by CCTV cameras and some lighting.
It was usual for female workers to leave late at night and sometimes early in the morning after their shifts to collect their cars, be picked up or walk to the train station. It was also not uncommon for some to stay behind to chat or smoke.
There had not been any incidents in the car park involving assault in the 12 years before the claim.
The assault came about after a former employee, Aaron Brain, showed up at the car park. He was initially recognised by a former co-worker with whom he spoke, together with another worker. Later that night Brain approached three separate female workers and asked for fictitious assistance. He was not known to any of the three women.
Then Brain approached the plaintiff, who also did not know him. Brain’s story to the plaintiff was that he had a pregnant partner who needed help, and he asked her to come to his car and show him where the train station was. The plaintiff declined, walked to her car and got into the driver’s seat. Before the plaintiff could close the door Brain asked for a hug and tried to put his hand around her neck. The plaintiff pushed away his hand, got out of the car and ran away screaming.
Justice Bond stated that the starting point is the consideration of the statutory provisions in ss305B-305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which are analogous to ss9-12 of the Civil Liability Act 2003 (Qld).
In issue was causation; namely, if one of the three workers who had been approached prior to the plaintiff had informed the security guard of Brain’s conduct, including by phone, the plaintiff’s injury would have been prevented.
Justice Bond was critical of the failure of the trial judge to engage with the statutory test  referring to Strong v Woolworths Ltd (2012) 246 CLR 182 at -; cited in a similar context by Jackson J in Stokes v House With No Steps  QSC 79 at  and also in The Corporation of the Synod of the Diocese of Brisbane v Greenway  QCA 103 at -.
Justice Bond found the trial judge erred by not engaging with the evidence of the workers who had been approached, and concluded that the failure to provide adequate reasons as to how the injury could have been avoided was an error of law: Drew v Makita (Australia) Pty Ltd  2 Qd R 219 at .
Justice Bond applied the High Court authority per Gageler J in Henderson v State of Queensland (2014) 255 CLR 1 at - and Gordon J in Re Day (2017) 340 ALR 368 at  as to the requisite standard of inferential reasoning when direct proof is not available.
Two of the workers did not give evidence at the trial and as a consequence their police statements were relied upon at trial. The workers both expressed a degree of fear and apprehension; critically, the conduct occurred outside of the car park and on the way to the train station. There was no evidence as to whether the workers had associated Brain’s conduct with making a complaint to the security guard and/or their employer. There was also no evidence that they had mobile phones or would have reported the incidents before the plaintiff’s assault.
The third worker who gave evidence on this point said that she felt a little bit scared while she was in the car park. Importantly, she thought she had received training to report such matters but did not think that Brain’s conduct was sufficiently worrisome to be concerned.
Justice Bond considered that even if the security guard was informed, there was insufficient evidence to legitimately infer that the security guard would then have left and found Brain.
His Honour further considered the scenario of the security guard finding Brain and asking him to leave. His Honour was not persuaded this would have occurred or that Brian would not have returned once the security guard’s attention was drawn elsewhere.
Unsurprisingly, Bond J found that factual causation was not established, and there was no basis to find that the case was ‘exceptional’ within the meaning of s305D(2). The appeal was upheld and the claim dismissed with judgment for the defendant.
David Cormack practised as a solicitor for ten years before being admitted as a barrister in 2003, initially as In-House counsel for WorkCover Queensland. In 2009, David moved to the Private Bar and is briefed on personal injuries, occupational health and safety, industrial relations, employment law, mental health, mediations and restorative practices. David is a contributor to The National Work Health and Safety Law and Court Forms, Precedents & Pleadings Qld (Insurance; Discontinuance & Dismissal / Principles & Practice) subscriptions (LexisNexis). David maintains a web page and blog, providing newsletters to subscribers and has launched a free ‘App’ for calculating future losses of income on the 3 and 5% actuarial Tables, together with superannuation. Recreationally, David enjoys cycling for charity events and competing in kayaking. David volunteers with the Wynnum Redlands Canoe Club. David practices pro bono restorative justice via the Sycamore Tree Project with Prison Fellowship Australia (QLD).
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).