On 25 June 2015 and 22 July 2015, HopgoodGanim Lawyers published alerts discussing the outcome of two recent decisions handed down by appellate courts involving plaintiffs assaulted by third parties who had their claims for damages against their employer and/or the occupier dismissed on appeal.

In a welcome development for employers and occupiers alike, Queensland’s District Court has since handed down a decision in October 2015 which found in favour of an employer and occupier who were sued by a cleaner assaulted in a car park of a well known fast food restaurant.[1]

Facts

The plaintiff was assaulted in the car park outside of the McDonald’s restaurant at Harbourtown on the Gold Coast in the early hours of the morning on 18 January 2008.  At the time, he was part way through his regular shift as a cleaner at that restaurant.  The plaintiff was employed by the first defendants, DJ and KM Church trading as Panther Cleaning and Construction (Panther Cleaning).  The second defendant, Jomik Investments Pty Ltd (Jomik) is the franchisee of the McDonald’s restaurant.  

Jomik had engaged the services of Panther Cleaning, by contract, to provide cleaning staff for its restaurant.  The identity of the perpetrators of the assault on the plaintiff was not revealed at trial.

Whilst it was not disputed that the plaintiff was the victim of an assault, the major issue in contention at trial was whether the plaintiff was carrying out his duties cleaning the car park at the time of the assault, or alternatively, whether the plaintiff left his duties, cleaning inside the restaurant, to go out and have a cigarette whilst talking to his friends who happened to be outside.

Initially the plaintiff pleaded his claim against his employer and the occupier of the restaurant as one for damages and/or breach of contract.  However, by the time of trial, those claims were pressed in negligence only.

Judgment

The trial judge, Bowskill QC DCJ ruled in favour of the defendants, finding that the plaintiff was not a credible or reliable witness due to:

  • the manner in which the plaintiff evaded or failed to answer questions put to him in cross‑examination;
  • the plaintiff’s failure to disclose significant matters to the medical experts who examined him at trial, in particular his suffering prior injuries in a work incident and motor vehicle accident;
  • the inconsistencies between the plaintiff’s oral evidence at trial and what he said previously in a statement to the Police, a statutory declaration provided at the request of one of the defendant’s lawyers and in his evidence in the proceedings before the Industrial Magistrates Court; and
  • the exaggerated account of the assault provided by the plaintiff to various medical practitioners in comparison to his original statement to the Police in which he informed that he had no recollection of the actual assault.

By contrast, the court accepted in most part, the evidence of the second defendant’s witnesses, who comprised a director of Jomik, a general manager of the restaurant, the restaurant’s assistant manager and a shift manager.

In arriving at its judgement, the court rejected the plaintiff’s evidence that he went to clean the car park in the early hours of the morning when the assault occurred, preferring instead the evidence of the restaurant’s managers that contract cleaners at the restaurant did not commence cleaning the car park until after sunrise, in accordance with the cleaning schedule contained on the inside door of the cleaning cupboard inside the restaurant.

The court was also mindful that the restaurant’s cleaning schedule made provision for an actual rest break to be taken, and there were open air places in the restaurant where the plaintiff could have a cigarette break that did not require him to go outside in the car park.

Relevant to the court’s decision was that whilst it was accepted that there had been some previous instances of loutish or hoonish behaviour exhibited by individuals in the car park, in particular on Friday and Saturday nights, that was the extent of the evidence for any actual or potential criminal activity.  Therefore the court determined that there were no significant safety or security issues or concerns at the restaurant or in its car park prior to the assault on the plaintiff.  In particular, none of the restaurant staff from whom the court heard evidence had any concerns about their safety and nor had any of the witnesses received complaints from other staff about safety concerns.

An allegation by the plaintiff that the defendants failed to enforce the cleaning schedule, which provided that the car park should not be cleaned until daylight, was rejected by the court on the premise that the plaintiff had not been observed by staff at the restaurant to be going outside to clean the car park previously in the early hours of the morning.

It was also found by the court that the restaurant had appropriate security measures in place in the form of requirements for locking doors and gates to the restaurant and the availability of the adjacent shopping centre’s security staff to be summoned to attend the restaurant, if required.

Therefore, the court determined that the plaintiff had not established that either of the defendants was in breach of their obligation to provide a safe system of work, or to take reasonable care to prevent the risk of injury to the plaintiff.  Having regard to the magnitude of the risk of an employee, or contract cleaner, being assaulted in the car park outside the restaurant, and the degree of probability of that occurring, both of which were, on the evidence, very low, the court found it had not been established there was anything more that could or should reasonably have been done by either of the defendants which would have avoided the risk of an assault.  Therefore, the court held that the liability for the assault on the plaintiff lay solely at those third parties criminally responsible for it and not with either of the defendants.

Liability apportionment

The court held that in the event the defendants were to be found liable, the appropriate apportionment of responsibility was 60% to Panther Cleaning and 40% to Jomik.  In arriving at that apportionment, the court was mindful that although Jomik exercised control over the system of work, in terms of directing the work the plaintiff was to do in accordance with the restaurant’s cleaning schedule and although Jomik, as the operator of the restaurant, had direct control of security issues at the restaurant, it was apparent that Panther Cleaning retained ultimate responsibility for the plaintiff, as its employee, and in particular was responsible for his training.  In that regard, the court observed there was no direct evidence presented at trial of any particular steps taken by Panther Cleaning to ensure the safety of the plaintiff.

Take away points

  • As a general rule, and in the absence of some special relationship such as employer and employee, the law does not impose a duty on an occupier to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
  • However, an occupier may be burdened with a heightened duty of care to provide a safe system of work if the occupier, although not in fact the employer, has a relationship with the entrant to its premises which is analogous to the relationship between employer and employee – as occurred here where Jomik controlled a significant aspect of the system of work by directing what, where and when the plaintiff cleaned different parts of its restaurant, in accordance with the cleaning schedule.  There was also a level of control exercised by Jomik, via the requirement for the plaintiff to check in with a manager at the end of the shift to make sure everything had been done.
  • In contrast to an occupier’s duty of care to entrants, the relationship of employer and employee is one where there exists on the part of the employer a duty to take reasonable care to prevent its employees suffering harm from the criminal conduct of others.  That duty extends to providing a safe system of work.  However, absent evidence of significant criminal activity in the relevant locality and/or prior complaints by employees about their personal safety, the prospects for an employee injured by the criminal act of a third party, to claim damages against the employer may be tenuous.