Miles v BCC  QDC 501
The Plaintiff, a Brisbane City Council bus driver, was robbed and assaulted with a piece of timber whilst using bus driver rest room facilities at night. This occurred in an area which the Trial Judge found to be overgrown and poorly lit. At the time his employer’s policy was that the bus’ cash box be carried with the driver if they left the bus.
The bus driver sued his employer in negligence and breach of contract. It was accepted by his employer that given the employment relationship they owed a duty to take reasonable care to protect employees from the criminal behaviour of third parties as ‘random and unpredictable as such behaviour may be’.
The issues were obviously then the scope of such duty and whether it was breached.
After reviewing the relevant authorities, his Honour set out the following principles as to the scope of the duty:-
- the employer’s duty was not absolute;
- the measure of care that needs to be taken increases in proportion with the level of risk and harm involved;
- it was no answer that there had been few such assaults and no safety concerns expressed by other drivers – it was for the employer to consider the safety of employees;
- it was not unreasonable for the Plaintiff to attempt to defend himself and not simply hand over his takings and his own wallet given the ‘suddenness of the attack’ in which the Plaintiff was ‘effectively ambushed’ given that the assailant jumped from a bush between the bus stop and the toilet.
As to breach, his Honour said:-
- the Plaintiff must prove, by direct evidence or reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means which would have protected the Plaintiff from the risk of the allocated task, without unduly impeding its accomplishment;
- the Plaintiff bears the onus to prove what reasonably practicable precaution could have prevented the injury and does not establish a case simply by asserting that there ‘must be’ one. Suggestions alone are not enough and there must also be evidence of the practicability of those suggestions;
- the extent to which the proposed measures might unduly impede accomplishment, was not an additional qualification but only went to the question of whether or not it was reasonable to expect them to be carried out;
At trial, the Plaintiff’s argument boiled down to there being breach due to:-
- failing to provide a lockable area for the cash box to be stored on the bus (as they now are);
- failing to adequately check and monitor the toilet (as was also done post-accident);
Defence Counsel argued these were not reasonably practicable means of obviating the risk which existed as:-
- retrofitting cash boxes to 800 buses was prohibitively expensive – in the order of millions of dollars;
- the cost of additional lighting and clearing of all terminals and facilities was cost prohibitive and in any event the overhanging branches were not on council property.
The Plaintiff failed on the cash box point because there was no evidence that had the cash box been on the bus the Plaintiff would have avoided injury; and it failed to prove this was reasonably practicable given the cost of a retrofit.
However the Plaintiff succeeded on the lighting/maintenance issue with the Court noting that “the provision of adequate lighting and reduction of hiding places would have a two way effect. First, it would provide a less attractive venue for any person inclined to commit robbery. Second, in the event that such person was still inclined to commit a robbery, it provided an environment where the intended victim had much better prospects of observing the assailant earlier rather than later and thereby having the opportunity to take appropriate action… it would be reasonable to presume that criminals would be less likely to commit offences in circumstances where the chances of success are materially reduced”.
What to Take Away
This case enforces the high standard of care demanded of an employer and that if there is a relatively low cost means of reducing even a reasonable low likelihood of harm if the potential damage is severe the Court will expect such measures to be carried out.
At a practical level it highlights the utility for Defendants in first seeking full particulars of, and then calling cogent evidence as to the actual costs involved in implementing, any means of reducing risk suggested by the Plaintiff.