Worker’s claim for damages fails on account of causation: Bishop v Compass Group Remote Hospitality Services Pty Ltd [2024] QDC 14
Background
The Plaintiff, Joana Lyn Tagle Bishop, alleged that she sustained personal injuries through the course of her employment for the Defendant, Compass Group Remote Hospitality Services Pty Ltd.
The Plaintiff alleged that the developed a number of symptoms in respect of her right elbow over a six-month period whilst performing a range of repetitive duties that involved high static loads and forces. Thereafter, when placed on modified duties, she increasingly relied on her left arm, which she alleged lead to her developing symptoms in respect of the left elbow.
The Plaintiff commenced proceedings against the Defendant for damages in May 2022.
Case Background: Bishop v Compass Group Workers’ Comp Claim
Breach of Duty of Care
The Court was satisfied that the risk of injury was a foreseeable one, in the sense mentioned in s 305B(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (QLD). The Court noted that this risk had seemingly been recognised by the Defendant, given a significant component of the induction training performed by the Defendant focussed on the need to avoid either repetitive tasks, or those tasks that necessitated sustained application of force.
The Court opined that whilst the Defendant had identified the relevant risk of injury to workers, as well as measures that would avoid this risk, it failed to appropriately implement and enforce such measures. Specifically, the Court opined that the Defendant ought to have ensured that the Plaintiff did not scrub pots and pans for more than thirty (30) minutes, and that there was a system in place that ensured that workers took their regularly scheduled “smoko” breaks.
In light of the above, the Court concluded that the Defendant had breached the duty of care that it owed the Plaintiff.
Causation
As noted by the Court, in order to succeed in her claim for damages the Plaintiff had to establish that the Defendant’s breach caused, or materially contributed to, the damage allegedly sustained. This requirement is set out in s 305D of the Act, being a restatement of the common law ‘but for’ test.
The Plaintiff was assessed by two orthopaedic surgeons prior to trial, Dr Angus Nicholl and Dr Chris Blenkin. There was no dispute between the specialists as to the nature of the Plaintiff’s injuries, being bilateral tennis elbow.
On the balance of evidence available to the Court, Rosengren DCJ was not satisfied that the Plaintiff’s injuries were caused, or materially contributed to, by the Defendant’s breach of its duty of care. Whilst Dr Nicholl had supported a causal link between the Plaintiff’s employment and her injuries, Rosengren DCJ opined that this conclusion was made on the false assumption that the Plaintiff was undertaking the offending duties for seventy-five (75) per cent of each shift, which was not borne out by the evidence. Her Honour accepted Dr Blenkin’s evidence that the nature of the Plaintiff’s employment was not commensurate to the types of roles that are known risk factors for tennis elbow. Relatedly, her Honour also accepted Dr Blenkin’s evidence that some of the tasks alleged to have caused the Plaintiff’s conditions, such as the scrubbing of pots and pans, were unlikely to have exposed the Plaintiff to the risk of tennis elbow, as they lacked the biomechanical pre-conditions for the development of such a condition.
The Court concluded that it was probably, or at least equally possible, that the Plaintiff’s injuries can be explained by factors unrelated to her work duties, such as her gender, age, and constitution. Accordingly, the Plaintiff’s claim failed, as she had not established any causal link between the Defendant’s breach and her injuries.
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