Employer Liable for Employees Biff

In a recent decision of Judge Kent QC, of the Southport District Court, an employer was found liable for injuries suffered by one of its employees in the workplace when a co-worker assaulted him.

The Facts

Top Cut Foods Pty Ltd employed Jamie Colwell as a knife hand/butcher at its food-processing premises in Burleigh Heads, Queensland.

Over a period, Mr. Colwell had various interactions with his co-worker, Warren Parks.

Mr. Colwell and Mr. Parks worked in the ‘lamb section’ of the employer’s facility, nearby, generally working back-to-back within two metres or so of each other.

Immediately behind Mr. Colwell and beside Mr. Parks was their supervisor, Jamie Hall.

Mr. Hall was a friend of Mr. Parks at work but not outside of work.

Mr. Colwell’s evidence was that Mr. Parks was at all times a ‘very intimidating person’ and presented himself as such. He stated that Mr. Parks spoke of his violent past, including that he had previously killed someone and, at previous workplaces, he had ‘always knocked someone out’.

On 20 January 2014, Mr. Colwell was assaulted by Mr. Parks while both were at work.  He was punched to the back of the head and to the face until two co-workers physically restrained Mr. Parks.  Mr. Colwell suffered significant injuries.  One of the intervening co-workers, Mr. Larter, was also attacked by Mr. Parks while restraining him.

Mr. Parks gave evidence at trial, frankly admitting his criminal history. That he was imprisoned in the United Kingdom for doing grievous bodily harm with intent to do grievous bodily harm, racially motivated, and three counts of assault occasioning bodily harm, for which he was sentenced to four-and-a-half years imprisonment after pleading guilty, and then being released from prison after serving three-and-a-half years.

He asserted that Mr. Colwell was rude and confrontational to him in the lead-up to the assault, although agreed that he had assaulted Mr. Colwell first.  He said he did not feel that he was dangerous at the time of the assault but that he could often look angry and frustrated, and did so at the time.

Mr. Parks’ subsequent work history from 2010 included the Gold Coast Bakery, where he had two violent (or at least argumentative) events, was in trouble for arguing with a workmate when employed by another employer, (Australian Beef), at Tweed Heads and, having previously been dismissed from the employer (Top Cut Foods Pty Ltd) in July of 2013 because of a verbal argument.

When Mr. Parks was re-employed by the employer in October 2013, he was asked by a supervisor who was aware of the previous incident if he had changed. He responded that he was more aware of his ‘triggers’ and did not wish to be part of management as it was a management position which had stressed him previously, leading to the prior altercation.

Consideration of the Law

Central to the claim was the employer’s state of knowledge as to the potential risk of injury to Mr. Colwell from Mr. Parks.

The evidence led at trial focused on four distinct events which Mr. Colwell argued had placed his employer on notice of a risk of him suffering injury from Mr. Parks:

1. Mr. Colwell had earlier raised concern about Mr. Parks’s behaviour to his supervisor, Mr. Hall, prior to Christmas 2013, stating that he was concerned about Mr. Parks’ emotional state, in terms of his own safety, and said that the situation was like a ‘ticking time bomb’ (the first warning);
2. Mr. Parks had made a complaint to Mr. Hall about Mr. Colwell on the Tuesday before his assault upon Mr. Colwell, asking if Mr. Colwell could be moved away from him and describing that he was ‘close to losing it’ (the second warning);
3. There had been an angry exchange between Mr. Parks and Mr. Colwell on the Friday before the assault occurred (although the court found that it was unclear whether Mr. Hall heard the exchange) – (the third warning); and
4. Mr. Hall witnessed Mr. Parks loudly abusing Mr. Colwell on 20 January 2014, leading up to the assault upon Mr. Colwell on that same day (the fourth warning).

The Judgement

His Honour referred to the non-delegable duty of care owed by an employer to an employee, indicating that the duty may extend to protecting the employee from criminal behaviour of third parties, including fellow employees.

His Honour considered what enquiries a reasonable employer would have undertaken in the circumstances, having regard to the magnitude of the foreseeable risk, the probability of its occurrence, and the expense, difficulty and convenience in taking alleviating action.

He found that the employer was on notice of Mr. Parks’ prior criminal history and, further, had knowledge that Mr. Parks had misbehaved at work previously. He described that as significant enough for Mr. Blachford, of the employer, to ask Mr. Parks if he had changed.

His Honour did not accept the employer’s submission that, even if they had moved Mr. Parks and Mr. Colwell away from each other, the assault could still have occurred given they could still interact at smoko or at lunch.

His Honour accepted the evidence of both Mr. Colwell and Mr. Parks, finding that the employer was therefore on notice that Mr. Parks was a danger to Mr. Colwell. He found that the employer, through the supervisor, Mr. Hall, was aware that Mr. Parks and Mr. Colwell were having difficulties. Several other employees had also complained about not wanting to work around Mr. Colwell, and that Mr. Parks had previously been imprisoned, or that Mr. Hall knew, or should have known, the broad details of Mr. Parks’ offences, at least that violence was involved.

His Honour noted that the employer did not provide training to Mr. Hall in personnel management or de-escalating conflicts between employees, that Mr. Hall’s knowledge should have (but had not) prompted him to properly assess the risk that Mr. Parks posed to Mr. Colwell, and that the employer was on notice, based on the information it had or that was available to Mr. Hall and Mr. Blatchford, that Mr. Colwell faced a foreseeable risk of injury by assault from Mr. Parks.

His Honour found that:

1. The employer could have moved either Mr. Colwell or Mr. Parks at any time prior to 20 January 2014 without significant difficulty or expense for the business;
2. Had Mr. Parks and Mr. Colwell been separated by 17 January 2014, the assault would likely not have occurred; and
3. When Mr. Hall encountered Mr. Parks and Mr. Colwell arguing on 20 January 2014, he should have separated them, rather than seeking to remove them from the workplace together, which would likely have avoided the assault occurring.

Thus, the employer was found negligent, as:

1. on the information available to the employer via its supervisor, Mr. Hall, the assault was foreseeable;
2. the separation of Mr. Parks and Mr. Colwell was a relatively simple and inexpensive step;
3. the failure to relocate Mr. Parks and Mr. Colwell and, therefore, separate them by 17 January 2014, was a breach of the employer’s duty of care;
4. the failure to immediately separate them when arguing on 20 January 2014 was a further breach of that duty of care; and,
5. the breaches of duty were causative of Mr. Colwell’s injuries, in that they materially increased the risk of him suffering injury and that risk materialised.

Mr. Colwell’s damages were assessed at $584,995.09, clear of the refund owing to WorkCover Queensland.

Lessons Learned

The decision highlights the extent to which employers can be found to be aware of facts in the knowledge of their employees, particularly supervisors and managers, and consideration of the steps that can be taken to alleviate risk to an employee’s health and safety arising from that knowledge, having regard to the inconvenience and expense of doing so. In this instance, the workplace conduct was more than mere banter and should have been addressed earlier.

A link to the case can be found here.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).