Two employees have an argument at work. One shoots
the other as the latter is about to drive home after work.
Who's to blame? The employer ..........
A recent decision by the NSW Court of Appeal found that an
employer had failed in its duty of care when one employee shot
another employee on the way home from work. As a result, the
employer had to pay the injured employee over $861,000 plus
The injured employee (P) and the assailant (L) were both
employed as stonemasons from 1999. From the time he was employed, L
had behaved in an aggressive manner toward two other employees but
had not engaged in violence.
However, during an argument with P in April 2000, L punched P in
the head and was about to hit P with a heavy metal tool when
colleagues intervened to restrain L. The manager who arrived
shortly after the incident told P and L to 'forget' about
the incident and discouraged P from reporting the matter to the
police. No disciplinary action was taken against L.
In the period 12 to 14 December 2001, L repeatedly yelled at P
in aggressive manner. One of the directors of the employer made the
men shake hands in an attempt to resolve the situation, despite L
demonstrating that he was still angry.
On 14 December 2001, P left work at the usual time and went to
his car which was parked across the road from the workplace. P was
confronted by L who then shot at P three times with a handgun,
injuring P underneath his armpit.
P commenced proceedings in the District Court alleging that his
employer's negligence resulted in the incident.
The District Court found in P's favour and awarded him in
excess of $861,000 in damages. The employer appealed the decision
to the NSW Court of Appeal.
The Court of Appeal's decision
Before the District Court and the Court of Appeal, the employer
argued that there was no duty of care to protect an employee from
an unforeseeable extreme act of violence committed after work on a
However, both courts found that a duty of care existed and that
the employer had breached that duty.
In particular, the Court of Appeal found that at the time of the
first incident between L and P in April 2000, the employer should
have at least warned L that his behaviour was unacceptable and that
if he did not control his behaviour, he would be dismissed.
Alternatively, L should have been dismissed at that time. In
addition, the employer should not have discouraged P from reporting
that incident to the police.
While the precise circumstances of the December 2001 shooting
incident were not reasonably foreseeable, it was foreseeable that P
might be assaulted by L (again) and that L might use a weapon.
The Court of Appeal therefore concluded that the employer was
negligent: the injury to P was caused by the employer's
breaches of its duty of care and the outcome was not too
While it may seem harsh to hold an employer responsible for the
criminal acts of an employee outside the workplace, the case is a
timely reminder of the broad scope of an employer's duty of
care to its employees.
The case demonstrates the importance of taking disciplinary
action immediately in relation to serious workplace altercations.
Hoping that the employees will 'work it out' leaves the
employer open to claims of negligence if there is a subsequent
incident resulting in harm to an employee.
The fact that the incident in this case took place after working
hours and not in the workplace made no difference. The Court of
Appeal found that as the circumstances were not remote in terms of
time and location, the consequences of the breach of the duty of
care were reasonably foreseeable.
1 Gittani Stone Pty Limited v Pavkovic  NSWCA 355 (13 December 2007).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).