The recent District Court case of Colwell v Top Cut Foods Pty Ltd [1] once again highlights the importance of an employer’s duty to take reasonable care and to provide employees with a safe work environment.
The employer was sued for more than $500,000 by an employee who was bashed by another employee.
Summary of Facts
The case which was heard before Queensland District Court Judge Kent QC arose after an employee suffered significant injuries following a workplace assault by another employee.
The employee commenced proceedings against his employer claiming $500,000 in damages for injuries suffered as a result of the employer’s negligence and/or failure to provide a safe place of work. The employee submitted that the employer had been put on notice as to the assaulter’s criminal history and aggressive behaviour, and therefore should have taken steps to prevent the assault occurring.
The employer denied that it acted negligently and/or breached its contractual duty to provide a safe work environment and contended that the assault was not foreseeable. The employer argued that it was not aware of any facts that showed the assaulter had a propensity for violence and that the assault was a complete ‘surprise’. Conversely, the employee argued that events preceding the assault had put the employer on notice as to the violent behaviour of the assaulter. The employee relied on evidence that several other employees had made complaints to the employer about the assaulter’s behaviour and that the employer had issued a number of warnings to the assaulter regarding his behaviour prior to the assault.
Interestingly, the assaulter was called as a witness and gave evidence about his criminal past including previous criminal convictions and time served. The assaulter gave further evidence that he had disclosed his criminal history to a number of employees. He also spoke to his aggressive workplace behaviour, past and present, and testified that he had specifically requested that the employer move him away from Mr Colwell before the assault.
The Issues
The three central questions before the Court were:
- Was the assault reasonably foreseeable;
- If it was foreseeable, what precautions (if any) could the employer have taken to minimise the risk of the assault; and
- Did the employer’s failure to take these precautions cause the injuries complained of?
Decision
The Court held that the employer had a duty to take reasonable care and to provide a safe working environment and that it breached these duties by failing to take steps to mitigate the risk of the assault occurring.
The case ultimately turned on the employee’s evidence that the employer had been put on notice as to the assaulter’s history of violent behaviour. In light of this evidence, the Court accepted that the risk of an assault occurring was foreseeable. The Court held that it would have been reasonable for the employer to separate the employees and that such action, if it had been taken, would have prevented the assault from occurring.
Relevantly, one of the manager’s (jokingly) asked the assaulter:
- have you bashed anyone yet?
- have you killed anyone yet?
So it was difficult to make out an assault was not foreseeable.
In summary, the employer’s failure to take any pro-active steps to prevent the assault from occurring was found to be a breach of its duty to provide a safe place of work.
The employee was awarded $584,995.09 in damages.
What does this Mean for Employers?
This case serves as a timely reminder for employers not to turn a blind eye but rather take active steps to maintain a safe place of work particularly in circumstances where they are made aware of unsafe workplace behaviours. If employers fail to take such steps, they risk exposing themselves to costly damages claims by employees.
For the full decision click here.
