Love v Lindsay Brothers Management Pty Ltd
[2013] QDC 174
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- Unreported Judgment
- Love v Lindsay Brothers Management Pty Ltd[2013] QDC 174
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Love v Lindsay Brothers Management Pty Ltd[2013] QDC 174
Love v Lindsay Brothers Management Pty Ltd[2013] QDC 174
DISTRICT COURT OF QUEENSLAND
CITATION: | Love v Lindsay Brothers Management Pty Ltd [2013] QDC 174 |
PARTIES: | Gary William Love (Plaintiff) v Lindsay Brothers Management Pty Ltd (Defendant) |
FILE NO/S: | 2600/11 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court in Brisbane |
DELIVERED ON: | 30 August 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 & 12 June 2013 |
JUDGE: | Kingham DCJ |
ORDER: |
|
CATCHWORDS: | CIVIL – NEGLIGENCE & BREACH OF CONTRACT – LIABILITY – FORESEEABILITY OF RISK – where the plaintiff was injured at his workplace after being assaulted by a subcontractor – whether the defendant had notice of a specific risk – whether the risk of harm posed by the subcontractor was foreseeable. CIVIL – NEGLIGENCE & BREACH OF CONTRACT – LIABILITY – BREACH OF DUTY OF CARE – where the plaintiff was injured at his workplace after being assaulted by a subcontractor – whether the defendant had failed to take reasonable steps to fulfil its duty of care to the plaintiff – whether there were further steps that the defendant could reasonably have taken which would have prevented the assault. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, followed. Antoniak v The Commonwealth (1962) 4 FLR 454, followed. Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, applied. Hegarty v Queensland Ambulance Service [2007] QCA 366, applied. Hudson v Ridge Manufacturing Company Ltd (1957) 2 QB 348, applied. Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville (1997) 1 Qd R 29, applied. Vozza v Tooth & Co Limited (1964) 112 CLR 316, applied. Wolters v The University of the Sunshine Coast [2013] QCA 228, applied. Wyong Shire Council v Shirt (1980) 146 CLR 40, applied. |
COUNSEL: | Mr R.A.I. Myers for the Plaintiff. Mr. R. Morton for the Defendant. |
SOLICITORS: | Biddle Lawyers for the Plaintiff. Ashurst Lawyers for the Defendant. |
Background
- [1]Gary Love worked as a forklift driver for Lindsay Brothers Management Pty Ltd, a logistics company specialising in the transportation of fresh produce. On 25 May 2010 he was working at the Lindsay Brothers depot at Rocklea. Late that night he was assaulted by Ian Carroll, a truck driver subcontracted to deliver produce to and from the depot. Mr Love sustained serious facial injuries which required surgery. He seeks damages from Lindsay Brothers in negligence or breach of contract.
- [2]The incident itself was captured on CCTV footage. It shows that, at about 10:20pm, Mr Carroll entered the depot by car through a security gate controlled remotely from the depot office. After the car entered and parked, two men (employees of Lindsay Brothers) approached Mr Carroll’s vehicle and stood in front of the car. Mr Love then walked towards the car. Mr Carroll got out, took a few steps and punched Mr Love on the right side of his face, knocking him to the ground. The entire incident, from the time Mr Carroll entered the depot to the time he struck Mr Love, lasted no more than 14 seconds.[1]Only 4 seconds elapsed from when Mr Carroll got out of the car until he punched Mr Love.
- [3]Mr Love said he assisted Mr Carroll to load and unload produce earlier in his shift, which started at 4pm. Some time later, another employee of Lindsay Brothers, Mr Pugh, asked him if he had stolen anything from Mr Carroll’s van and Mr Love told him he had not. Mr Pugh then said “Carroll’s coming back to see you and sort this out.”[2]
- [4]Although it is reasonable to infer that Mr Carroll spoke to Mr Pugh about the matter earlier that night, neither man gave evidence. The only evidence of relevant events, then, comes from Mr Love and the CCTV footage. Mr Love said Mr Carroll had been delivering to the depot about twice a week for two to three months before the incident.[3]He gave no evidence to suggest prior animosity between the two of them.
- [5]Mr Love argues Lindsay Brothers failed to take adequate steps to guard against a foreseeable risk to his safety. Lindsay Brothers accepts it owed Mr Love a duty to take reasonable care for his safety, but denies it is liable to compensate him. It says the risk of assault by Mr Carroll was not foreseeable, or, if it was foreseeable, it had taken reasonable steps to protect Mr Love given the risk was slight and remote. Further, it contends the assault would not have been prevented by any step that it might reasonably be expected to have taken. Finally, it contests the quantum of Mr Love’s claim for damages.
- [6]The issues are:
- Was the risk of Mr Love being assaulted by Mr Carroll foreseeable?
- Did Lindsay Brothers breach its duty of care to Mr Love?
- If so, what damages should be awarded to Mr Love?
- 1.)Was the risk foreseeable?
- [7]An employer is liable, whether by application of the law of negligence or as an incident of the contract of employment, to take reasonable precautions to prevent a foreseeable risk to the safety and welfare of its employees.[4]Lindsay Brothers accepted it owed Mr Love that duty.[5]It is not a far-fetched or fanciful proposition that, in some circumstances, an employee could be at risk of violence in the workplace, whether from a fellow employee or a member of the public or even an intruder. A risk may be plainly foreseeable even if it is quite unlikely to occur.[6]
- [8]Whether there is a foreseeable risk of violence in a particular case is, essentially, a factual enquiry, dependent on the circumstances in that workplace such as: the nature of the enterprise and the workforce; their duties; the workplace culture and any history of conflict between assailant and victim.
- [9]Mr Love worked at a depot which predominantly handled fresh fruits and vegetables.[7]Cash was not kept on the premises. The depot did not deal with items such as cigarettes, pharmaceuticals or whitegoods.[8]It offered little in terms of valuable and moveable items that might otherwise attract potential thieves. The potential for violence at the hands of an intruder seems remote.
- [10]In this case, although Mr Carroll was an intruder at the time of the incident, he had, earlier in the day, been a lawful entrant and had visited the depot on many occasions legitimately. The evidence about his work status did not establish whether he was a subcontractor to Lindsay Brothers. Nevertheless, Lindsay Brothers conceded that, whatever his status, if he presented a foreseeable risk of harm to Mr Love, it was required to take reasonable steps to prevent the risk being realised.[9]
- [11]Counsel for Mr Love submitted that Lindsay Brothers, through its employee Mr Pugh, had adequate notice of an “actual potential incident” involving Mr Carroll.[10]If that is meant to convey that the employer was on notice of a potential violent confrontation, I cannot accept that submission.
- [12]
- [13]Mr Love’s evidence was that Mr Pugh asked him if he had stolen anything from Mr Carroll’s van and that Mr Carroll was coming back to sort it out.[13]Counsel for Lindsay Brothers objected to that evidence if it was led to establish what Mr Carroll said to Mr Pugh. I allowed the evidence, but only in so far as it established what Mr Pugh said to Mr Love. There is no admissible evidence of what was said to Mr Pugh by Mr Carroll.
- [14]The statement by Mr Pugh that Mr Carroll was coming back to sort it out is equivocal. In the absence of evidence from Mr Pugh, it could not be inferred that Mr Pugh was conveying a threat to Mr Love. The phrase is equally capable of meaning, amongst other interpretations, that Mr Carroll was simply returning to the depot to discuss the missing stock. The fact that this dispute is said to have occurred over something as relatively minor as the alleged theft of a few boxes of oranges only reinforces that conclusion.
- [15]There was no evidence that, in the past, Mr Carroll had behaved violently or unpredictably, so as to suggest he might present a risk to Mr Love or anyone else. Mr Love did not say there had been past animosity or a history of conflict with Mr Carroll.
- [16]Without hindsight reasoning, which must be avoided, I am not persuaded it was foreseeable that Mr Carroll might assault Mr Love.[14]
- [17]While I accept the general proposition that Lindsay Brothers owed Mr Love a duty to take reasonable precautions to protect him from violence in the workplace, I am not satisfied that Mr Carroll presented a particular risk that Lindsay Brothers knew or should have known about. On the evidence before the court, Lindsay Brothers could not have foreseen that Mr Carroll presented a risk of assaulting Mr Love, without warning, because he suspected Mr Love had stolen a small amount of produce.
- [18]In case I have erred in that conclusion, I will consider whether, if the risk of violence was foreseeable, Lindsay Brothers breached its duty to Mr Love in the circumstances.
- 2.)Did Lindsay Brothers breach its duty to Mr Love?
- [19]Whether there has been a breach of the employer’s duty will depend on the steps taken to protect the employee’s welfare, having regard to the nature of the risk, the probability of the risk occurring and the likely consequences if it does occur. The court must determine what a reasonable employer would do by way of response to the risk.[15]
- [20]Mr Love’s case is negligence or breach of contract by omission: that Lindsay Brothers failed to take reasonable action to prevent the harm. This requires the court to engage in a hypothetical inquiry about whether the incident and, therefore, the injury, could have been avoided by Lindsay Brothers taking reasonable steps to prevent it.[16]The frame of reference for the inquiry is set by what the duty of care required and the facts and circumstances from which the likelihood of preventing the harm can be assessed.
- [21]If it is accepted that Mr Pugh was put on notice of an actual potential incident, the question is what could Lindsay Brothers, reasonably, be expected to do in response to the risk of a confrontation between Mr Carroll and Mr Love. Counsel for Mr Love argued that the company’s omissions, in breach of its duty, were failing to assess the risk and implement a proper management plan. Specifically, he argued that Lindsay Brothers could have given “proper instructions”, provided “adequate supervision” and given “an appropriate direction” following the threat. He also argued increased gate security could have been implemented.[17]He submitted these measures would likely have prevented Mr Love’s injuries but did not explain how.
- [22]In Hudsonv Ridge Manufacturing Company Ltd[18], Streatfield J discussed the standard to be applied in the context of workplace risks arising from the conduct of workers themselves:
“… upon principle it seems to me that if, in fact, a fellow workman is not merely incompetent but, by his habitual conduct, is likely to prove a source of danger to his fellow employees, a duty lies fairly and squarely on the employers to remove the danger.”[19]
- [23]Lindsay Brothers might have removed, or at least reduced, any danger Mr Carroll presented by excluding him from the depot. The court must, however, have regard to the fact that attendance at the depot on a regular basis appears to have been one of Mr Carroll’s work duties. The consequence to Mr Carroll of being excluded was not explored in evidence. On the limited evidence before the court, I am not persuaded that this was reasonably required.
- [24]In Antoniak v The Commonwealth[20], Dunphy J explored what might be required by way of response on the first occasion that a potential danger is manifest:
“If… a worker, for the first time, indicates himself as possibly as a potential danger, an employer should not, except in extraordinary circumstances, be held responsible for subsequent injury to a fellow employee if he did not go to the ultimate remedy immediately upon the first report.”[21]
- [25]Because Mr Carroll said he was coming back to sort it out that night, Lindsay Brothers could have advised Mr Carroll that it would investigate the allegation and forbid him from confronting Mr Love directly. Given Mr Carroll’s irrationally violent and excessive response within a short time of forming his suspicion that Mr Love had stolen a small amount of produce, I am not satisfied there was sufficient time for such an intervention or that Mr Carroll would have been diverted by it.
- [26]Lindsay Brothers could have directed Mr Carroll not to return to the depot. That would not be effective unless he was likely to respond rationally to the company’s intervention. Mr Carroll’s conduct that night leaves little room for confidence that he would have complied with the direction. He engaged in a violent criminal act at a workplace in the clear view of two witnesses.
- [27]In any case, as it was, Mr Carroll was an unauthorised entrant that night. Lindsay Brothers implemented a security system that was intended to prevent unauthorised persons from entering the depot. This system consisted, primarily, of a large security gate, monitored by a CCTV recording system. When persons approached the gate, they had to radio or call an employee in the office who could open the gate remotely. The vehicle would then enter through the gate. It took some time for the gate to close[22]and this did present some risk of unauthorised entry into the depot. That risk was realised when Mr Carroll entered without authority, “shadowing” a truck that was approved to enter.
- [28]However, there is little more that Lindsay Brothers could have done, practicably, to prevent unauthorised entry. Dr Tony Zalewski, an expert in security systems and workplace safety, was engaged by Mr Love to provide a report and gave evidence on the question.[23]Dr Zalewski stated that:
“… in operations where trucks are entering and leaving there is an inevitable delay hence the potential for shadowing can occur which therefore requires introduction of an immediate intervention strategy on unauthorised access…”.[24](emphasis added)
- [29]That is precisely what happened on the night.[25]Within seconds of Mr Carroll’s car entering, two employees approached his vehicle. The evidence does not allow the court to conclude what role those employees were fulfilling. However, one of them was Mr Pugh, the employee through whom Lindsay Brothers is alleged to have been put on notice of a potential incident.
- [30]Dr Zalewski raised the possibility that Lindsay Brothers could have engaged a security guard. Ultimately, he accepted the cost of this was likely to be more than minimal.[26]In any case, I am not convinced the presence of a security guard would have prevented the incident. It certainly would not have prevented unauthorised entry by shadowing.
- [31]Further, the assault occurred seconds after two employees approached Mr Carroll’s car. Their close proximity did not deter Mr Carroll. It is possible that a uniformed security guard might present a more effective deterrent. However, “the conduct of criminal assailants is not necessarily dictated by reasonable prudential considerations”.[27]The incident happened so quickly that it is unlikely a guard would have had time to establish their authority as security or, indeed, to act to prevent the incident.
- 3.)Conclusion on Liability
- [32]I am not satisfied on the evidence that Mr Carroll threatened harm to Mr Love before the incident. There is no evidence that he had ever conducted himself in a way that indicated he presented a risk of violent or unpredictable behaviour towards others. In those circumstances, it was not necessary for Lindsay Brothers to exclude him from the depot. Even accepting that it was foreseeable that Mr Carroll presented some risk of aggressively confronting Mr Love, it was improbable that he would assault Mr Love on sight, in the presence of witnesses, and without warning. Mr Carroll entered the depot by car, without authority, exploiting an inevitable delay in the gate closing after an authorised vehicle had entered. Despite the presence of two other employees who approached his vehicle, Mr Carroll assaulted Mr Love within seconds of getting out of the car. Mr Love has not established what measures Lindsay Brothers could reasonably be expected to have taken that would have prevented that assault. Given those findings, Lindsay Brothers is not liable to Mr Love for his injuries.
- 4.)Quantum
- [33]Although I have found against Mr Love on liability, it is appropriate that I state, briefly, my assessment of quantum.
- [34]Mr Love was taken to hospital that night for treatment and returned to the depot afterwards to fill out an incident report form. A CT scan three days later showed he had a depressed fracture of the floor of the right orbit and a comminuted fracture of the lateral wall of the right maxillary antrum. There was fluid in the right maxillary antrum. There was a thick mucoperiosteal reaction in the left maxillary antrum consistent with sinusitis. There was a mild nasal septal deviation towards the right.
- [35]Surgery was performed on Mr Love about 6 weeks later. He underwent an open reduction and internal fixation of the right zygomatic complex, at two sites, under general anaesthetic and a metal plate and screws were placed in the floor of the right orbit.
- [36]There is no argument that he suffered considerable pain from his injuries and the surgery. He has made a good recovery, although is left with some slight tenderness to palpitation. Mr Love suffered some blurred vision in the past, but this no longer troubles him. He now experiences sensitivity in the area of the plate when he works in a cold room and suffers from ongoing sinusitis.
- [37]Where the parties differ is the psychiatric consequences of the incident. Lindsay Brothers questions whether there is a serious psychiatric injury. Mr Love’s case is that he has an adjustment disorder resulting from his post traumatic stress disorder. Dr Varghese assessed this as constituting a permanent degree of impairment of no more than 5%. It has resulted in marital disharmony, and he is now separated from his wife. He ceased counselling for financial reasons and reports increasing issues with anger and flatness.
- [38]Taking the adjustment disorders into account, I would have awarded $60,000 for pain, suffering and loss of amenities and interest of $1,830, as claimed.
- [39]As for past economic loss, I would have allowed the workers’ compensation statutory benefits of $25,148.46. I would also have allowed a further $10,000 for past economic loss for the following reasons:
- He left Lindsay Brothers while he was on workers’ compensation;
- Lindsay Brothers continued to pay his superannuation when he was on workers’ compensation;
- The difference in his pre and post income relates largely to not working overtime. Although I accept that he is not prevented from working overtime because of the assault, there is evidence from his psychologist that he is anxious, tires easily, feels physically restless and on edge. I accept that this would have affected his ability to work the same hours he did before the accident.
- [40]The award for past economic loss should attract interest on the non-statutory benefits amount.
- [41]I would have made no further allowance for past superannuation entitlements, given Lindsay Brothers continued to make these while Mr Love was on compensation, albeit at a reduced rate.
- [42]I would have made an allowance for future economic loss by reference to the difference in his net pay pre and post injury, but not the entire amount claimed by Mr Love. I accept that he has some vulnerability in the open labour market, given his adjustment disorder and the impact that this might be expected to have on his ability to work longer hours. I would have allowed $30,000, approximately 1/3rdof his claim.
- [43]I would have awarded the special damages of $6,616.03 and the interest claimed of $152.
- [44]In the absence of evidence of Mr Love’s future medication needs, I would have allowed $2,000
Orders
- [45]I have concluded that Lindsay Brothers did not breach its duty of care to Mr Love. Accordingly:
- The claim is dismissed.
- Unless the parties provide written submissions on costs within 14 days, the plaintiff must pay the defendant’s costs, assessed on the standard basis, if not agreed.
Footnotes
[1] Exhibit 4 – CCTV Footage.
[2] Transcript of Proceedings, Brisbane District Court, 11/06/13, 1-22[33]-[34].
[3] Transcript of Proceedings, Brisbane District Court, 12/06/13, 2-5[20]-[25].
[4] See, e.g., Vozza v Tooth & Co Limited (1964) 112 CLR 316, 319 (Windeyer J); Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25 (Dixon CJ & Kitto J); and Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville (1997) 1 Qd R 29, 41 (Williams J).
[5] Outline of Defendant’s Submissions (cour t document #26), filed 12/06/13, p 3[18]. See also Amended Defence (court document #8), filed 19 Mar 2012.
[6] Wyong Shire Council v Shirt (1980) 146 CLR 40.
[7] Transcript of Proceedings, District Court at Brisbane, 11/06/13, 1-32[13]-[15].
[8] Transcript of Proceedings, District Court at Brisbane, 11/06/13, 1-32[26]-[38].
[9] Outline of Defendant’s Submissions (court document #26), filed 12/06/13, p 5[25].
[10] Outline of Plaintiff’s Submissions (court document #25), filed 12/06/13, p 5[16].
[11] Transcript of Proceedings, District Court at Brisbane, 11/06/13, 1-4[1]-[4].
[12] Outline of Defendant’s Submissions (court document #26), filed 12/06/13, p 6[32]. See further Transcript of Proceedings, District Court at Brisbane, 12/06/13, 2-24[20]-[31].
[13] Transcript of Proceedings, District Court at Brisbane, 11/06/13, 1-22[5]-[34].
[14] Hegarty v Queensland Ambulance Service [2007] QCA 366 at [49] (Keane JA).
[15] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 (Mason J).
[16] Wolters v The University of the Sunshine Coast [2013] QCA 228, [40]-[42] (Gotterson JA).
[17] Outline of Plaintiff’s Submissions (court document #25), filed 12/06/13, [16], [21]-[24].
[18] Hudson v Ridge Manufacturing Company Ltd (1957) 2 QB 348.
[19] Hudson v Ridge Manufacturing Company Ltd (1957) 2 QB 348, 350 (Streatfield J).
[20] Antoniak v The Commonwealth (1962) 4 FLR 454.
[21] Antoniak v The Commonwealth (1962) 4 FLR 454, 459 (Dunphy J).
[22] Exhibit 4 – CCTV Footage.
[23] Exhibit 5 – Expert Security Report.
[24] Exhibit 5 – Para 45.
[25] Exhibit 4 – CCTV footage. Transcript of Proceedings, District Court at Brisbane, 2-11[43]-[46].
[26] Transcript of Proceedings, Brisbane District Court, 12/06/13, 2-12[26]-[34].
[27] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 441[48] (French CJ, Gummow, Hayne, Heydon & Crennan JJ).