Serra v Couran Cove Management Pty Ltd  QSC 130
On 30 May 2012, Douglas J. of the Brisbane Supreme Court handed down judgment for the Employer in the matter of Serra v Couran Cove Management Pty Ltd  QSC 130.
Mr Serra, the Worker, worked as an electrical mechanic at the Couran Cove Resort. On 13 July 2007, the Worker was viciously assaulted by a co-worker, Peter Markin. Markin was another electrician at the resort.
Prior to trial, quantum had been agreed at $200,000 clear of the WorkCover refund. The trial proceeded on liability issues only.
The Worker argued that Markin should have been dismissed on a date prior to the assault as a result of a number of issues within the workplace. It was argued that the employer was on notice of the potential for an assault by Markin. The matters giving rise to the Worker’s allegations that Markin should have been dismissed included:
- Another electrical co-worker on the island gave evidence that Markin was generally angry and difficult to deal with. This co-worker’s evidence was he had been subject to abuse and obscenities from Markin, which ultimately led him to resign his position from Couran Cove.
- Markin had left a note for his immediate manager which contained an offensive racial reference to the Worker.
- The Worker alleged that Markin was deliberately sabotaging the resort’s power plant in an effort to make the Worker look bad in the eyes of his employer.
- The Worker alleged that Markin deliberately rewired a dishwasher within the resorts restaurant in an effort to electrocute (and possibly kill) the Worker.
- There was uncontroversial evidence that the Worker and Markin had a loud verbal disagreement, witnessed by other workers, within a workshop area.
In considering the duty of care owed by the employer in these circumstances, Douglas J. made reference to Hudson v Ridge Manufacturing Company Limited  2 QB 348 and Antoniak v The Commonwealth (1962) 4 FLR 454. It was noted that Dunphy J. in Antoniak, referred to Hudson’s case in accepting that if an employer has reason to anticipate misconduct by an employee dangerous to other employees, the employer would be under a duty to other employees to take reasonable steps to prevent harm arising from it. Dunphy J. confirmed that if reprimands are disregarded, the duty ultimately involves dismissal of the vicious or mischievous. Importantly, Dunphy J. went on to conclude that an isolated act would need to be extremely grave and of such a nature that repetition were a probability to justify an employer taking the extreme step of dismissal.
The Court also did make reference to Gittani Stone Pty Ltd v Pavkovic  NSW CA 355, as an example wherein a Worker succeeded in circumstances where there was a significant history of misbehavior by a fellow employee including an assault, that had not been dealt appropriately by the Employer and where the rogue employee later shot the Worker when he was leaving work.
The evidence was that Markin was appropriately reprimanded and counseled after leaving the racist note. Douglas J. accepted it would have been unreasonable for the employer to have dismissed Markin after the verbal dispute between he and the Worker, or the discovery of the racist note.
Douglas J. concluded that there was nothing in the allegation of sabotaging the power plant, or deliberately changing passwords on computers, sufficient to suggest that Markin should have been dismissed, or making it foreseeable that there was a potential for assault.
Of particular interest was the allegation involving the dishwasher within the restaurant being deliberately rewired in an attempt to electrocute the Worker. The original trial of the matter was adjourned as the Worker suddenly remembered the day of the first attempt at trial, details of the dishwasher incident. This required significant amendment to his pleadings and the trial was adjourned. The very late recollection of the dishwasher incident certainly troubled Douglas J.
The evidence of the employer was that they had no knowledge of the incident and that if they had such knowledge, or if it had been proven, they would have dismissed Markin.
Douglas J. did not accept there was any evidence implicating Markin in a deliberate attempt to electrocute the Worker or to render the glass washer unsafe. It was concluded there was nothing in the evidence that was said to the Worker’s supervisors which would have led them to draw such a conclusion. The Worker’s evidence about the glass washer incident was suggested to be unreliable.
Douglas J. concluded that the occasion for summary dismissal did not arise until the date of the assault. In fact, it was suggested if Markin had been further disciplined or threatened with dismissal at an earlier date, he may well have attacked the Worker in any event. In conclusion Douglas J. stated:
“On the facts I have found it is my view that it has not been shown either that the Defendant breached the duty of care owed to Mr Serra or, if it had dismissed Mr Markin or counseled him more vigorously earlier, that the result would have been any different from that which occurred. Consequently it is my view that the Plaintiff has failed to prove his case and that his action should be dismissed with judgment entered for the Defendant.
The law in this case was not the subject of any real dispute. It involved the application of the ordinary principals of negligence to the employer relationship, and the decision was heavily based on the factual matrix of the claim. These types of cases will always turn on their own particular facts.
A copy of the Judgment can be found here.