Carswell v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane  QSC
7 September 2012
This case highlights that even though an employer may have breached their duty of care, the onus is on the worker to prove that the breach was a material cause of the harm suffered by the worker.
The injured worker was a 53 year old disability support worker who suffered facial and neck injuries when she was struck by a soccer ball while supervising children at a recreational camp. All children attending the camp had behavioural problems and/or intellectual disabilities. The worker was standing on the 'side line' on a grassed area between two buildings talking to colleagues when she was struck. She alleged the ball was deliberately kicked at her and that the child who kicked the ball had been left unsupervised.
The questions for the judge came down to a) was there a breach of duty, ie, was the child left unsupervised at the time of event and b) if there was a breach, was that breach causative of the ball hitting the worker.
It was agreed by the parties that each child attending the camp required one on one supervision. What was in dispute was whether the child had been left unsupervised and whether the child deliberately kicked the ball at the injured worker.
In response to breach of duty, Wilson J, found against the employer as it was not proven that the child's supervisor was present at the time of the incident. Her Honour found that the child had been left unattended and further, had failed to inform another carer that the child was being left unattended for a period of time.
But was the failure to supervise, on the balance of probabilities, the cause of the worker being struck and injured by the ball? Her Honour concluded that at the time the ball was kicked, there was no evidence of anti-social behaviour, of escalation in misbehaviour or that the ball was deliberately aimed at the worker or that he acted recklessly in kicking the ball. In short, there was no evidence that the identified risk eventuated.
Accordingly, it was held that the worker had not discharged her onus of proving that breach of duty for which the employer was responsible was a material cause of the harm she suffered.
Judgment was found in favour of the employer.
Her Honour was still required to provide an assessment of damages.
Again, the issue was with causation and whether or not the neck surgery and the injured worker's ongoing symptoms was caused by the work-related event. Her Honour concluded that this event at most caused a minor aggravation of pre-existing degenerative change and that the symptomology that led to her surgery was not causally linked to being hit by the soccer ball. Accordingly, Her Honour found any damages recoverable by the worker, had she been successful on liability, would not exceed the WorkCover refund.