Serra v Couran Cove Management P/L  QSC 130
In this recent Queensland Supreme Court decision, the plaintiff's claim was dismissed and judgement entered for the defendant employer. Damages were agreed by the parties and the matter proceeded solely in respect of liability issues. The plaintiff, an electrical mechanic, was assaulted by a co-employee. The plaintiff argued that the co-employee should have been dismissed by the employer prior to the attack as a result of earlier incidents and, had the employer taken such action, the plaintiff would not have sustained the injuries.
The plaintiff was employed by the defendant as an electrical mechanic working at Couran Cove Resort. The plaintiff sustained personal injuries on 13 July 2007 when he was attacked by a co-employee. The evidence established that the plaintiff was hit repeatedly with a solid wooden baton and then chased in a van by the co-employee. The nature of the assault was so serious that the assailant was sentenced to four years' imprisonment. As a result of the assault, the assailant's employment was immediately terminated by the employer. The assailant challenged his dismissal and commenced proceedings for unfair dismissal.
The plaintiff argued that the defendant employer should have dismissed the co-employee earlier, with the effect that he would no longer have been present at the resort by the time of the assault, or the employer should have reprimanded or counselled the co-employee more vigorously due to his earlier conduct. It was contended that had the employer taken those steps his injuries would not have occurred and, consequently, the defendant was negligent and in breach of the employment contract.
There were a number of alleged incidents that the plaintiff relied on as being relevant to his claim including a report by the plaintiff that the assailant had allegedly tampered with a glass washer such that the plaintiff suffered an electric shock in June 2007; problems with password protection on computers at the resort's power station coinciding with problems related to gas supply to generators in the power station; a note written by the assailant left in the office on 4 July 2007 containing a racist comment referable to the plaintiff stating "have blackie fix these"; and a confrontation between the plaintiff and the assailant on 29 June 2007.
Findings relating to prior incidents
Some of the prior incidents relied on by the plaintiff were not accepted by the Court and other incidents were found not to have been of such magnitude as to require dismissal of the co-employee. In relation to the report by the plaintiff relating to the glass washer incident, the Court was not satisfied on the evidence that an event happened implicating the assailant in any deliberate attempt to electrocute the plaintiff or to render the glass washer unsafe, or that anything was said to the employer's supervisors from which they could have drawn such a conclusion. If the Court had been so satisfied, there would have been a strong case that such behaviour should have been investigated with the likely result that his employment should have been terminated.
The employer had delivered a reprimand to the co-employee / assailant in respect of the racist comments in the note written by him and expressed that the content was not acceptable terminology and he should try to work together with the plaintiff with mutual respect. The employer's evidence was that the assailant had nodded affirmatively and there was no reason to suggest an assault would occur and no further steps were warranted at the time than those taken.
In relation to the prior confrontation, the plaintiff and assailant were at a meeting with a number of employees at a workshop where the assailant abused the plaintiff for not having done a job the plaintiff knew nothing about. The plaintiff shouted back and a face-to-face confrontation arose, which the employer's representative, Mr Tullett helped to break up. This event was the most serious event before the attack on 13 July. It was a verbal confrontation with some potential for violence however there were no physical elements. The plaintiff voiced that he did not wish to take the matter further. It was found by the Court that whilst that type of confrontation between co-workers is unpleasant, it was difficult to conclude that such behaviour by itself amounted to a sackable offence, although it may require more active intervention by management.
The legal principles were not in dispute, it involved the application of the ordinary principles of negligence to the employment relationship. It was held that a duty of care was owed and foreseeability was established. The Court was satisfied that the heated confrontation was sufficient to establish a foreseeable risk that a future more physical confrontation may occur and the risk was enhanced by the incident involving the note. However, the Court was not satisfied that the employer had breached its duty of care. On the evidence, it was held that it would have been unreasonable for the defendant to have dismissed the co-employee after the prior verbal confrontation or the discovery of the note, particularly taking into account the co-employee's apparent acceptance of the reprimand given by the defendant. The Court was not satisfied that the defendant breached its duty of care by failing to investigate, reprimand or discipline the co-employee more than it had already done.
Causation was also a stumbling block. Reference was made to the decision of Lusk v Sapwell  QCA 59 at  wherein Margaret Wilson AJA pointed out:
"Where the employer's negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm."
The Court concluded that it was plausible that had the co-employee been further disciplined or threatened with dismissal, he may well have attacked the plaintiff in any event. It was noted as significant that the assailant challenged his summary dismissal after the assault. Further, as the assailant lived on the island there remained a significant risk that he would have found a way to carry out the attack.
The case involved the application of ordinary principles of negligence to the employee / employer relationship and the decision turned upon the factual circumstances. Whilst the plaintiff's claim in this case was dismissed, it was noted that cases of this nature can succeed where there has been a significant history of misbehaviour by a fellow employee that have not been dealt with appropriately by the employer and ultimately much will depend upon the individual circumstances of the case.
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