The Facts

The Plaintiff was employed by the Defendant as a disability support worker. In that capacity she attended a camp at the Currimundi Active Recreation Centre on the Sunshine Coast in Queensland.

The camp was for children with behavioural problems and/or intellectual disabilities and as such, each child required individual care and was assigned their own carer. The Defendant had stipulated to its staff that the children were not to be left unattended by their carers unless the assigned carer had informed another carer of his/her proposed conduct ensuring constant supervision of all children while on camp.

The child who had kicked the soccer ball had been diagnosed as having severe conduct disorder, oppositional defiance disorder, ADHD, attachment disorder, and special behavioural education needs. He had a documented history of poor impulse control, little respect for others, little capacity for remorse and limited understanding of social values.

The Plaintiff was 53 years of age and had extensive experience as a carer of such children.

Some children were kicking a soccer ball around the camp site with their carers and the Plaintiff had stopped to have a conversation nearby when she was struck on the left side of the head with the soccer ball. The Plaintiff openly acknowledged in cross examination that she did not see the particular child kick the ball and that whether he did so deliberately was “debatable”.

In an Incident Report Form, completed about a week after the accident, the Plaintiff made no mention of the child who was kicking the ball not being under supervision or of the act being intentional.

The carer of the boy who kicked the ball said he had no recollection of the incident though he was apparently not asked about the event for over 18 months.

It was conceded by the Defendant at trial that there was a need to have the boy constantly supervised while he was at camp. The Plaintiff’s evidence was that the child that had kicked the ball had gone over and apologised saying that it had been an accident and that another male carer, not the assigned carer, had gone over after the incident and to speak to the Plaintiff.

There was no further investigation into the incident.

At trial, the Plaintiff conceded that if the subject carer was with the boy who kicked the ball when the incident occurred, then the Defendant had discharged its duty of care and the claim should be dismissed. However, the Plaintiff suggested that the evidence was completely against such finding.

The Findings

The trial judge found that the relevant carer was not participating in the game of soccer or in any manner supervising the child when he kicked the ball which hit the claimant. This was based on the fact that it was another carer, not the subject carer, who had spoken to the injured Plaintiff immediately after the subject accident, and that it was surprising that the subject carer, if present, had no recollection of the incident, particularly given the force with which the Plaintiff was hit and the number of people who rallied to her assistance afterwards.

In those circumstances, the trial judge found that the Defendant breached its duty to take all reasonable precaution for the safety of the Plaintiff given the nature of the child, and that the supervisor breached the duty of care he owed to the Plaintiff by leaving the child unattended, failing to supervise him, and failing to inform another carer that he was leaving him unattended. The Defendant was also vicariously liable for those breaches.

The focus then turned to causation. The trial judge found at paragraph 70:

Causation is a question of fact on which the Plaintiff bears the onus of proof. She must persuade the court on the balance of probabilities that the failure to supervise [the child] was a cause of her being struck and injured”.

The judge, Margaret Wilson J, noted that in the present state of the authorities was summarised by Kiefel J in Tabet v Gett [2010] 240 CLR 537 where her Honour said:

The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.

The “but for” test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test. The resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another. But it is also necessary to understand the purpose for making an inquiry about causation and that may require value judgments and policy choices.

Once causation is proved to the general standard, the common law treats what is shown to have occurred as certain. The purpose of proof at law, unlike science or philosophy, is to apportion legal responsibility. That requires the courts, by a judgment, to “reduce to legal certainty questions to which no other conclusive answer can be given”. The result of this approach is that when loss or damage is proved to have been caused by a defendant’s act or omission, a plaintiff records the entire loss (the “all or nothing” rule)”.

The trial judge said that in light of the above it was for the Plaintiff to prove that the failure to supervise the child materially caused her injuries. The Plaintiff had to prove that the failure to supervise gave rise to a risk, or added risk, that she would be injured and that that risk eventuated.

The Court noted the comments of Gaudron J in Bennett v Minister of Community Welfare [1992] 176 CLA 408 where Her Honour said:

“… generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect,21 or that the injury would have occurred even if the duty had been performed it will be taken that the breach of the common law duty caused or materially contributed to the injury …”

Her Honour said that therefore the Plaintiff needed to establish that the injury was an “injury within the area of foreseeable risk”.

Her Honour then questioned what was the risk or added risk arising from the absence of supervision. Her honour said that this was that the child was “more likely to engage in anti-social behaviour or that there would be an escalation in any inappropriate and potentially anti-social behaviour on his part”.

Her Honour when onto say that “The court may draw inferences only from facts which it finds to be proved to the requisite standard”. Importantly, her Honour held at paragraph 80 that:

There is a dearth of evidence about [the child’s] behaviour at the time he kicked the ball. There is no evidence of anti-social behaviour, or of escalation in misbehaviour. There is no evidence that in kicking the ball he deliberately aimed at the plaintiff. There is no evidence that he acted recklessly in kicking the ball: he may well have simply made a miscalculation. In short, there is no evidence that the identified risk eventuated”.

Her Honour ultimately held that the Plaintiff has not discharged her onus of proving that the Defendant’s breach of duty was a material cause of the harm suffered.

Implications

Plainly here, there was an absence of any evidence that the child had deliberately aimed at this particular carer. Further, there had been no evidence offered to the Court that the child had been misbehaving immediately prior to the incident or anything of that nature. As such, it may well have been that the incident would have occurred even if the supervisor had been present.

Accordingly, even where a stringent duty of care is owed and has been plainly breached, the issue of causation should not be forgotten.