Baillie v Donald Wayne Jackson & Victoria Point Sharks Sporting Club Inc  QDC
20 February 2015
This case highlights that it is not sufficient for a worker to show the employer has been negligent. It is necessary to show that the negligence caused the incident in which the worker was injured.
The worker was employed as a security guard by Donald Jackson, the employer. Mr Jackson had a contract to supply security services to the club. Pursuant to this agreement, the worker was working at the club on Saturday 8 September 2007 where there was a wedding reception being held.
The worker was injured when he was "king hit" by a wedding guest and suffered a fractured cheekbone and aggravation of a pre-existing adjustment disorder. When arrested by police, the assailant was determined by them to be too intoxicated to be questioned. The worker alleged that when he had first arrived at the club, his attention had been drawn to the assailant as a potential troublemaker and that although he had made several rounds of the function room throughout the night, he did not see the assailant again until immediately before the assault several hours later.
The worker made a claim against the employer and the club. He alleged both were negligent for employing one security guard in circumstances where there were 150 to 200 patrons at the club and when there was a function being held. He claimed that on every other occasion when there had been a wedding, two security guards were hired. He claimed he initially refused to work unless a second guard was provided and only agreed to work alone after the employer pleaded with him.
He argued that had a second security guard been present one of them would have been present in the function room throughout the night which would have allowed the assailant to be kept under observation and therefore he could have been ejected earlier or the worker could have been prepared for possible trouble when the assailant left under his own steam.
He also claimed the club was negligent in failing to cut off service of alcohol to the assailant.
Judge McGill made several key findings on credibility against the worker.
He found that there were closer to 100 patrons (including wedding guests) at the club than the 150 – 200 claimed.
He found that the assailant was not exhibiting any signs of gross intoxication when he left the club and was displaying no sign of aggression until he assaulted the worker.
Importantly, he found that when the worker first observed the assailant, he had decided he was acting normally. He had then made several trips through the function room throughout the evening. On those occasions he had seen the assailant and had not been concerned about his behaviour.
He found the worker had not refused to work unless a second security guard had been provided and that it was not a fact that two security guards worked every time there was a wedding.
Based on his findings of fact, Judge McGill held that it was not negligent for the worker to be working alone but, even if he had been, it would not have prevented the assault occurring, nor would it have allowed the worker to be better prepared to avoid a potential assault.
He also found there was no negligence on the part of the club in failing to cut off a supply of alcohol to the assailant.
This decision highlights the importance of employers undertaking a risk assessment. The Judge held that there was no negligence in only providing one security guard because the club had considered the number of people attending the wedding, the number of other patrons they would expect on a Saturday evening, the type of function that was taking place and the fact that there was not normally trouble at wedding receptions.