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 Assailant worked side by side as packers.
What comes of the evidence is that on the day of the incident 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 doing what he considered was the wrong procedure and after approaching the Worker and exchanging words he punched him. There was no dispute the assault occurred. The Worker sustained minor physical injuries but claimed a significant psychiatric injury.
The Worker alleged he observed the Assailant in the weeks leading up to the assault to be verbally abusive and aggressive towards co-workers and the Assailant would lose his temper seeing incorrect workplace practices. The Worker alleged he advised the branch manager he felt uncomfortable and unsafe working with the Assailant. He alleged the Employer knew the Assailant had previously gone to jail.
The Worker argued the Employer breached a duty to take reasonable care to prevent a foreseeable injury by failing to counsel the Assailant or terminate him for behavior prior to the assault. The Worker alleged these breaches caused his injury.
Evidence was given for the Employer by co-workers that the Worker and Assailant were acquaintances and the Assailant helped the Worker obtain the job. Evidence was that the Assailant was boisterous, a loud story and joke teller but nothing to suggest the likelihood of violence. The Employer was not aware of the Assailant’s criminal history.
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 Honor was not satisfied the Assailant’s conduct, so much of it as the Employer must be taken to have been aware of, along with the Worker's complaint to the branch manager, required the Employer to be on notice that the Assailant's presence in the workplaceconstituted a foreseeable risk of injury to the Worker or that it gave rise to the reasonable apprehension the Assailant was a danger to other workers.
His Honor said it was likely a warning would have settled the Assailant’s behavior down but could not conclude on the balance of probabilities that on the day of the incident, the Assailant, having engaged in a difficult phone call with a customer and then observing what he thought to have been poor practices of the Worker, a warning would have effected what followed.
Accordingly, as the risk of injury was not reasonably foreseeable, the Defendants failure to counsel or terminate the Assailant 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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