No foreseeable risk of injury

Love v Lindsays Bros Management Pty Ltd [2013] QDC 174

Kingham DCJ

30 August 2013

Background

The plaintiff, a forklift driver with the employer, alleged that 11.00pm whilst at the Brisbane Depot, 18 Shoebury St, Rocklea, he sustained a facial injury as a result of being assaulted by Mr Ian Carroll, a subcontractor. He also claims that he sustained a secondary psychiatric injury.

The plaintiff alleges that he was undertaking his usual duties as a forklift driver when a subcontractor driver, Ian Carroll, who was onsite making a delivery accused the plaintiff of stealing stock from his truck. The subcontractor driver left the depot but returned to the depot later that evening. The subcontractor driver waited until the gates to the depot opened and followed another truck into the depot. The subcontractor driver confronted the plaintiff regarding the same allegations and punched him in the face without warning.

Liability

During the trial the plaintiff failed to call supporting witnesses in relation to issues of fact. He pleaded and opened his case on that basis that a threat was conveyed to a supervisor by the assailant. However, neither witness was called. The plaintiff did present evidence from Dr Tony Zalewski, an expert in security.

The plaintiff submitted that prior to the assault the behaviour of Carroll was such that;

• a reasonable employer in the position of the employer would have foreseen that Carroll's presence in the workplace gave rise to a foreseeable risk of injury to the Plaintiff;
• a reasonable employer could have taken steps to protect the plaintiff from that risk of injury;
• the employer's failure to do so was unreasonable; and
• the employer's failure to take the steps that it is alleged to have unreasonably failed to take caused the plaintiff's injuries.
• We submitted on behalf of the employer that:
• Carroll's presence in the workplace did not constitute a foreseeable risk of injury (Foreseeability).
• If Carroll's presence did constitute a foreseeable risk of injury the risk was so slight that a reasonable employer would not have done more than the employer did (Breach of Duty).
• Even if assault was foreseeable it would not have been reasonable to expect the employer to take any steps to guard against the extremely remote prospect of assault. (Reasonableness)
• The assault would not have been prevented by any step which the employer might have taken. (Causation)

Judgement

In terms of factual issues, her Honour accepted there was no evidence of what was said by the assailant to the supervisor and that in absence of evidence from the supervisor, it could not be inferred that the supervisor was conveying a threat. Her Honour also accepted that there was no evidence that the assailant had behaved violently or unpredictable and might present a risk. As such, her Honour was not satisfied that the assailant presented a risk of assault that the employer knew or ought to have known about.

With respect to the evidence led by the plaintiff, the report of Dr Zalewski was not accepted in its original form as it addressed issues of fact which had not been established. Without this material, it contained little in the way of compelling evidence. Her Honour noted that Dr Zalewski accepted the cost of a security guard at the entry was likely to be more than minimal and she was not convinced it would have prevented the incident.

Her Honour then turned to look at the issue of causation. That is, the hypothetical inquiry about whether the incident could have been prevented by reasonable steps. The assailant was a regular lawful attendee at the premises. Only 4 seconds elapsed between when the assailant exited his car and assaulted the plaintiff. He entered behind a truck, parked and then exited his vehicle. Her Honour determined that given the assailants irrationally violent and excessive response within a short time, there would not have been sufficient time to divert an intervention.

Ultimately, the plaintiff's claim was dismissed and the plaintiff was ordered to pay WorkCover's costs, assessed on the standard basis.

Despite finding against the plaintiff on liability, her Honour provided her assessment of quantum as follows:

• General damages: $60,000 for pain, suffering and loss of amenities and associated interest of $1,830;
• Past economic loss: $25,148 for statutory benefits in addition to a further $10,000 given the plaintiff left employment with the employer while on statutory benefits, the employer continued to pay his superannuation, and the plaintiff's psychologist indicated his ability to work was affected by his psychiatric symptoms. No further allowance was made for past superannuation benefits because the employer continued to make these while the plaintiff was on compensation (albeit at a reduced rate);
• Future economic loss: $30,000 (approximately 1/3 of his claim) by reference to the difference in his net pay pre and post injury, but not the entire amount claimed by the plaintiff. Her Honour accepted he had some vulnerability in the open labour market and this might impact his ability to work longer hours;
• Special damages: $6,613.03 and associated interest claimed;
• Future expenses: $2,000 for future medication needs.

This would total $135,591.03.

The plaintiff's claim was dismissed and WorkCover will proceed to recover costs from the claimant.