In Pols v AME Products Pty Ltd1 the District Court at Brisbane considered the foreseeability of a risk of injury in circumstances where a Worker was assaulted at the workplace on 17 March 2010 by another employee (the Assailant) approximately five weeks after starting work for AME Products Pty Ltd (the Employer).
Both the Worker and the Assailant worked side by side as packers. Evidence was given that the Worker and Assailant were acquaintances and the Assailant helped the Worker obtain the job.
Immediately prior to the assault the Assailant was engaged in a difficult phone call with a customer. After the phone call the Assailant observed the Worker undertake a task incorrectly. After approaching the Worker and exchanging words the Assailant punched the Worker.
There was no dispute the assault occurred. The Worker sustained minor physical injuries but claimed a significant psychiatric injury.
The issue was whether the Employer could be held to be liable for the injury, loss and damage arising from the assault.
The Worker alleged he observed the Assailant in the weeks leading up to the assault to be verbally abusive and aggressive towards other workers and the Assailant would lose his temper when he observed tasks performed incorrectly in the workplace.
The Worker alleged he told his manager that he felt uncomfortable and unsafe working with the Assailant.
The Worker argued the Employer breached the duty of owed to him. The Worker argued that the Assailant should have been counselled about his behaviour by the Employer earlier and if this had of occurred the risk of injury would have been materially reduced or eliminated.
The Employer argued that although the Assailant was boisterous, a loud story and joke teller there was nothing to suggest the likelihood of violence.
The trial judge, Deveraux SC DCJ found the Assailant was a loud individual with firm views about how he liked things to be done and told others what he thought. Despite this, His Honour was not satisfied the Assailant’s conduct, constituted a foreseeable risk of injury to the Worker or that it would give rise to a reasonable apprehension the Assailant was a danger to other workers.
His Honor held that while it was likely a warning might have settled the Assailant’s behavior, the Court could not conclude, on the balance of probabilities, that on the day of the incident, a warning would have materially reduced the risk of injury arising out of what followed.
Accordingly, as the risk of injury was not reasonably foreseeable, the Defendants failure to counsel or terminate the Assailant’s employment did not amount to a breach of the duty of care that was owed to the Worker. The Workers claim failed.
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