Workplace assault involving issues of foreseeability and causation and the employer's knowledge

Colwell v Top Cut Foods Pty Ltd ACN 010 650 281 [2018] QDC

Kent QC DCJ

27 June 2018

Background

The Plaintiff was a 43 year old former meat processor who sustained both physical and psychological injuries when he was violently assaulted at work, by a co-worker 'P' on 20 January 2014. P was later convicted of assault.

There was a history of some antagonism between the Plaintiff and P. The Plaintiff gave evidence P was very intimidating and spoke of his violent past including having killed someone and committed repeated assaults at previous work places.

The Plaintiff gave evidence he complained to his supervisor about P's behaviour one month prior to the event, that the situation was like a 'ticking time bomb'.

Elements of the Plaintiff's evidence about these matters were found to be exaggerated.

However, the Court accepted that P also complained to the supervisor a week before the incident, that the Plaintiff was annoying him and asked to be moved so they did not continue working side by side.

Four days later there was an aggressive verbal interaction between the Plaintiff and P. On the next work day (after a weekend) P approached the Plaintiff to apologise and the Plaintiff responded robustly and P shouted aggressively at the Plaintiff. A supervisor intervened and directed both to put their knives and tools down and follow him into the office. As the Plaintiff and P followed the supervisor, P attacked the Plaintiff.

Liability

The Plaintiff alleged the events preceding the assault put the employer on notice that P may assault the Plaintiff. This then imposed a duty of care on the employer to take appropriate measures to prevent the foreseeable risk of an assault.

The Plaintiff alleged the employer breached that duty by failing to separate the Plaintiff and P in the workplace.

Judgement / Findings

The Judge accepted most, but not all of the Plaintiff's evidence about events leading up to the assault.

The Judge found:

1. the employer knew P had a criminal history for serious assault;
2. the events preceding the assault collectively should have had the cumulative effect of putting the employer on notice the P may assault the Plaintiff;
3. the employer had no basis for terminating P;
4. the employer however should have separated the Plaintiff and P in the workplace, and failure to do so was a breach of duty;
5. the failure to separate the Plaintiff and P caused the assault because the argument preceding the assault would probably not have occurred if they were not working adjacent to each other;
6. the employer was therefore liable for the assault and the Plaintiff's injury; and
7. the Plaintiff was awarded damages of $584,995.

Discussion / Implications

It is not contentious that:

1. Employers are not directly liable for unlawful assaults caused by their employees.
2. However, if an employer is on notice of a foreseeable risk of an assault, the employer has a duty to take reasonable precautions to prevent that, and failure to do so may make them liable.

This case does however appear to significantly lower the bar for attaching liability to employers for criminal assaults in the workplace compared to previous cases such as Govier v The Uniting Church in Australia Property Trust and Serra v Couran Cove.

It demonstrates that courts expect employers to be very sensitive to the risk resulting from conflict in the workplace, and act decisively and early to protect employees who might be harmed by that.