Workplace Assault By Fellow Employee Not Reasonably Foreseeable – Pols v AME Products Pty Ltd [2013] QDC 190,

In Pols V AME Products Pty Ltd [2013] QDC 190, the District Court of Queensland dismissed a worker’s claim that his Employer was liable to him at common law for injury he sustained whilst in their employ.

The Court, after hearing evidence from the Plaintiff, Pols and other persons, held that the Employer could not be held liable at common law for physical and psychiatric injuries he sustained as a result of an assault upon him by his fellow employer at work. Pols was assaulted by his fellow colleague about five weeks after commencing work with the defendant as a Storeman and Packer.

He filed a claim for damages for breach of contract and negligence, on the basis that his Employer failed to provide him with a safe system of work and in doing so exposed him to a risk of injury which it knew or ought to have known of.

The issue for the Court to determine was whether the defendant should have foreseen, and taken steps to protect the plaintiff from the risk of injury constituted by his colleague’s presence (Stephen Gells) in the workplace.  The Court’s task was to decide whether the Employer was negligent in not taking steps to protect Pols from the risk of suffering injury from the assault.

The Plaintiff testified that he had observed his colleague behaving in a verbally and physically aggressive manner, referring to a number of incidents towards himself and other workers and that he would often lose his temper particularly when he observed tasks in the workplace were not performed accurately. Pols gave evidence that he informed his Manager he felt unsafe and uncomfortable working with his colleague, and having done so, that his Employer breached the duty of care owed to him in not taking action which may have prevented the assault.

He asserted that had his Employer properly counselled and dealt with Gell’s behaviour the injury he suffered would have been either materially reduced or eliminated.

There was a difference in evidence given by the Employer who contended that there was nothing of any substance to to suggest that there was a propensity for violence in Gell’s conduct.

After hearing and evaluating the evidence given, the Court held it was not satisfied that the Employer’s conduct was such as to amount to a foreseeable risk of injury to the Plaintiff such that it would have given rise to a reasonable suspicion that he posed a danger to other workers including Pols.

Furthermore, whilst the Court conceded it was likely that some form of counselling or warning may have had some “settling down effect” on Gells, it was unable to conclude, on the balance of probabilities, that on the day of the assault a warning would have reduced the risk of injury.

Therefore the Plaintiff was unsuccessful in establishing his claim in negligence that his Employer’s  failure to either terminate the employment of his fellow worker or admonish him amounted to a breach of duty owed to him.

There was some evidence of a temporary absence from work by Gells due to an incident involving him having resisted arrest, which Gells had relayed to Management who were therefore on notice of the incident prior to the assault.  In Court the incident was characterised as arising from an incident involving Gells and his mates getting into a bit of trouble with Police when he was out on the turps one night. Management personnel gave evidence to the effect that they were aware Gels was facing a charge of resisting arrest, however it did not lead to an apprehension of physical violence.

It was claimed  AME had conveniently terminated Gell’s employment in the prior year for the purpose of allowing him to serve a prison term for assaulting or obstructing police whilst serving a suspended sentence relating to property offences.  He was re-employed by AME 10 weeks after the termination.

According to his criminal history, he was in fact sentenced to one month’s imprisonment on 15 October 2009 for several offences including four charges of assaulting or obstructing police, although despite the termination after the event, the defendant Employer testified that they were not aware of his criminal history or of the sentence imposed on him prior to the assault.

The plaintiff contended that it was sufficient, based on previous case law, in order to establish causation, a necessary element to prove his claim, to establish that the defendant’s breach of duty materially increased the risk of injury to the plaintiff.

However the court rejected his submission that previous case law supported this proposition remarking that the existence of causal connections were to be determined according to “common sense” rather than philosophical theories, and that the real question was whether if, contrary to the Court’s conclusions, the defendant had breached a duty to take reasonable care to prevent a foreseeable injury to the plaintiff by failing to counsel the worker who assaulted the Plaintiff, the breach caused the injury.

The defendant Employer argued that Gell’s attack on the plaintiff was irrational and violent and taking into account that Gell had been jailed previously, the Plaintiff could not establish that any further counselling than was given to Gell would have had any effect on his subsequent behaviour,  thereby prevented the injury occurring. The Employer argued that there was nothing to suggest that Gell would have reacted positively to counselling.

Therefore the Court concluded, even if it were accepted that the defendant was or should have been aware Gell was a risk of reasonably foreseeable injury to the plaintiff, that the Employer’s failure to counsel Gell couldn’t be said to have contributed to the realisation of the risk of harm. Polls failed in his claim by failing to show his Employer should have taken earlier preventative action.

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