Marshall v GJ Church[2015] QDC 248

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff was assaulted in the carpark outside the McDonald’s restaurant at Harbour Town on the Gold Coast in the early hours of the morning on 18 January 2008. At that time, he was part way through his regular night shift as a cleaner at that McDonald’s restaurant. The plaintiff was employed by the first defendants, DJ & KM Church, who trade 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 the McDonald’s restaurant. That was how the plaintiff came to be working there as a cleaner.
2. [2]
   The plaintiff alleges that he suffered a broad range of injuries as a result of the assault on 18 January 2008.^[1]By these proceedings,^[2]he seeks to recover damages for those injuries, from both Panther Cleaning and Jomik. Although as initially pleaded the claim against each of the defendants was for damages for negligence and/or breach of contract, the claims were pressed in negligence only.^[3]
3. [3]
   Given the date of the incident, the claims are to be considered under the common law principles, rather than by reference to any legislative regime.^[4]
4. [4]
   It hardly needs to be said that it is extremely unfortunate that the plaintiff was the victim of an assault in the early hours of 18 January 2008, the criminal act of persons whose actual identity, and fate in terms of the criminal justice system, was not alluded to at the trial. However, for the reasons set out below, the conclusion reached by this court is that neither of the defendants is liable to compensate the plaintiff for the injuries he suffered as a result.

Credibility

5. [5]
   The plaintiff did not impress as a credible or reliable witness. I would not be prepared to act on the basis of the plaintiff’s evidence, unless it is otherwise supported by independent evidence; consistent with other evidence led at the trial; or inherently plausible. I have reached that conclusion on the basis of the following:

   1. (a)
      The way in which the plaintiff answered, or more accurately evaded or failed to answer, questions put to him in the witness box. He persistently avoided answering questions, or responded by referring to other matters, rather than answering questions directly.
   2. (b)
      His failure to disclose significant matters to the medical experts who examined him, and gave evidence at the trial – principally, the extent of his pre-existing psychiatric disorder, following a 2002 work injury, and a 2003 car accident, to Dr Chalk, whose expert evidence as a psychiatrist was relied upon by the plaintiff.^[5]
   3. (c)
      His apparent inability to recall anything about certain events, including relatively recent events of December 2014, in circumstances where he had previously recalled and recounted those events to a medical practitioner.
   4. (d)
      The inconsistencies (referred to in the reasons below) between what the plaintiff said in his oral evidence at trial, and what he had previously said, recorded in, for example:

      1. (i)
         the statement that he gave to police ten days after the assault, on 28 January 2008;^[6]

      1. (ii)
         a statutory declaration made by the plaintiff on 22 September 2011, in response to a request for information from the second defendant’s solicitors;^[7]

      1. (iii)
         a transcript of evidence given by the plaintiff in proceedings in the Industrial Magistrates Court on 28 August 2008.^[8]
   5. (e)
      In some respects, inconsistencies in the oral evidence that the plaintiff gave at trial, which are also referred to below, but an example of which is his evidence that he had complained to “Peter” of Panther Cleaning about having to do duties outside his own cleaning, and because of that having to work up to two hours overtime every morning, with no pay^[9]- which conflicted with his other evidence that there was not enough work to occupy him inside the restaurant up until 6am;^[10]that the whole premises had to be done by 5am, and the period from 5am to 7am was “basically just recap”, putting the cleaning gear away, and doing the checklist with the manager at 6.30am.^[11]
   6. (f)
      The versions he gave of the assault to medical practitioners, which can reasonably be inferred to be exaggerated, given his statement to police, and his evidence at trial, was of having no recollection of the actual assault:

      1. (i)
         to Dr Lichter, his psychiatrist, that he was assaulted by a group of 8 people, being struck with steel chairs and kicked for about 25 minutes;^[12]

      1. (ii)
         to Dr Chalk, that he was assaulted for about a half an hour;^[13]

      1. (iii)
         to Dr Stabler, that he was “assaulted by 6 boys aged about 15 years and beaten on the head with blunt objects such as chairs by 6 attackers for what [the plaintiff] assesses to be ‘28 minutes’”;^[14]

      1. (iv)
         to Dr Gillett, that he had been attacked from behind by up to six people.^[15]
   7. (g)
      The inherent implausibility of some of the things he describes.
6. [6]
   It would be generous to conclude that the plaintiff may be telling the truth as he sees it, even though his recollection is not accurate. Regrettably, I was not left with the impression that the plaintiff was a truthful witness.
7. [7]
   The court otherwise heard evidence from Mr Michael Atkins, a director of Jomik, and described as the “owner” of the Harbour Town restaurant, which is one of a number of McDonald’s restaurants operated by Jomik on the Gold Coast; Mr Glen Horden, the general manager of the McDonald’s restaurants operated by Jomik on the Gold Coast for the last 10 years, and who was also the restaurant manager at the Harbour Town store prior to that; Mr Matthew Laurence, the restaurant manager at the Harbour Town store from January 2007 to March 2008; Ms Cynthia Anderson, a manager at the restaurant from 2007 until 2010, who regularly worked the overnight shift at that time; and Ms Carleen Bellette, who was an assistant manager, from about 2006 to 2008. I did not have any reason to form an adverse view of the credibility or reliability of any of those witnesses. For the most part, I accept the evidence of these witnesses, which was largely consistent, and prefer it, where there is a conflict, to that of the plaintiff.
8. [8]
   No evidence was called from anyone from Panther Cleaning.^[16]

Factual Context

The assault

9. [9]
   The assault is said to have occurred just outside the McDonald’s restaurant, in the carpark, at about 2.00am on 18 January 2008.
10. [10]
    The restaurant was described by Mr Atkins as a “pad store”, which sits on the car park of the Harbour Town shopping centre. He said that Jomik’s lease gives it one row of car parking directly adjacent to the McDonald’s building, and after that you are in the car park of the shopping centre.^[17]As it was described, there is an external dining area at the restaurant, which was enclosed by a fence (a combination of a bricked garden bed and glass fencing, which at that time was about six foot high^[18]) as well as a gate, which would be closed and locked once the restaurant closed at midnight. The assault was said to have occurred about 1m from this gate.
11. [11]
    There is a relatively contemporaneous record, from the plaintiff, of what he said happened, in the statement he gave to police 10 days later, on 28 January 2008.^[19]
12. [12]
    In that statement the plaintiff refers to receiving a phone call at about 1.30 or 2.00 am “from a friend of mine called Terry”. After speaking to her on the phone, he arranged to meet her out the front of McDonald’s. The statement continues:

“5. I had a conversation with Terry (she told me she had just picked up her daughter and they were out the front of McDonald’s if I wanted to go out and meet her. So I said I’d go out the front and pick up the rubbish and say a quick hello.) I then went out the front of McDonalds. I met up with Terry and I met her daughter Alison. They were standing at the front gate of McDonalds. They were on their own. I had a conversation with them for less than 2 minutes. I briefly was introduced to Alison and then they left.

6. As I was talking to Alison and terry I could also see a dark car in the rear of the McDonald’s carpark. I saw Alison and Terry walk toward Terry’s car which was parked right at the front gates of McDonalds. Terry’s car is a white Holden sedan. As I saw them walking toward the car I saw one young fella approaching the car and I also saw another figure approaching the other side of the car. They came from the direction of the dark car. It looked like they went to either side of the car. Then I heard the girls arguing with one of them. I heard one of the girl’s say:  ‘Fuck off and go away’. I didn’t hear any of the guys actually saying anything. I was about a metre from the outside of the front gates. I was about another metre away from the car. I was standing on the driver’s side of the vehicle.

7. The girls were screaming but I couldn’t really make out what they were saying; just words like ‘Fuck off’. I saw Terry pushing some guy away from her. She was wrestling with him, they both had their hands on each other and it was push and shove. At no time did I see anything in her hands or in the guys’ hands. I remember what that guy looked like. He had two thin braids on his shoulders and he was white… I didn’t move from where I was standing; I said to that guy ‘Leave the girls alone’.

8. The guy with the braids then moved in front of me. He said:  ‘Come on have a go’. I said to him:  ‘There’s video footage here, I can’t fight you, you’ll have to move on’. He kept shaping up and at that point I said:  ‘I’m not going to fight you, listen, there’s a club up the road, my name’s Marshall’. At this point he was standing in front of me and he was still ‘shaping up’; so he had his hands in a fist and had them in front of him. I had my hands out in front of me in a protective stance. I did not say or do anything to provoke him…

9. I kept saying: ‘I’m not going to fight you, there’s video footage here, I’m to (sic) going to fight you’. I kept my arms out in front of me in a protective stance. I was not in a position to fight as I have just come off a pension for disability. I had surgery to right shoulder due to a workplace injury. I can’t lift my right arm up past my shoulder. So I knew I was not able to fight as I cannot even swim or play sports. So I was doing everything to calm the boy down as I didn’t stand a chance in a fit…

10. In my peripheral vision I could see a short dark skinned kid beside me. I don’t (sic) when he got to be beside me but I remember him being there. I had seen him before, a couple of nights earlier; he had snuck in the back entrance of McDonalds. I do not know who he is, but one of the staff members had said it was ok as she knew him.

11. I also remember a Lebanese looking guy, he was walking around the other side of the car, he was at the rear passenger side of Terry’s car.

12. Terry then walked up to him and pushed him back 3-4 metres from him. I saw them pushing each other. I remember this specifically as this is the last thing I can remember about that night. The next thing I recall waking up in an ambulance and the Ambulance Officer spoke to me…

…

14. At not (sic) time did I do anything to provoke or incite anyone, physically or verbally. I did not see Terry or Alison do or say anything to provoke, threaten or assault them either. I went out of my way to calm the braided kid down. I do not remember anyone swinging at me or assaulting me. I did not see anyone punch me and I do not know how that happened.”

13. [13]
    Although it is not clear, it appears the plaintiff was in some kind of relationship with Terry, even if it was a casual one. She was certainly more than an acquaintance, which is how the plaintiff initially described her at trial.^[20]He told Dr Chalk, when he first saw him in February 2010 that he went to say hello to his then girlfriend in the carpark, and that he was in a relationship with one of the girls in the carpark;^[21]although subsequently told Dr Chalk, in March 2015, that he was not in a relationship at the time of the injury.^[22]
14. [14]
    The description of the circumstances leading up to the assault which the plaintiff gave at trial differed in some significant respects to what is set out in his police statement. Both for that reason, and in so far as it concerns the plaintiff carrying out his normal work duties (for reasons which will be elaborated on below), I do not accept the following aspects of his evidence:

    1. (a)
       That when he went outside to see his friend Terry, he had a cigarette and “just pick[ed] up a few bits of paper or rubbish”, which was no different to a normal night.^[23]
    2. (b)
       That he was just about to go outside anyway, as his “next duty was the outside windows”.^[24]
    3. (c)
       That, after he met with Terry, and spoke to her for 2-3 minutes, she went back to her car and he “picked up a few bits – more rubbish” and placed them in the rubbish bags at the front gate”.^[25]
    4. (d)
       That Terry and her daughter then got back in their car.^[26]
    5. (e)
       That he then heard screaming from “these girls in the car”, being “a car located probably about three, four metres from me” and that he “noticed a girl getting dragged by her hair out the car window”.^[27]
    6. (f)
       He later said he noticed the screaming “as they were driving off”.^[28]
    7. (g)
       That he then “mentioned, give them a break” to the two people who were “pulling girls by the hair”, and after that “just went back to my duties”, “picking up the rubbish”.^[29]
15. [15]
    It was after that, that the plaintiff said the “two people that were pulling her by the hair” confronted him, came in front of him, and put their hands up like a fight. Consistently with what he told police, though, the plaintiff said he otherwise remembered nothing about the assault. He said he woke up in the ambulance, and was told by the ambulance officers that he had been assaulted.^[30]
16. [16]
    His evidence at trial in relation to the presence of the “young dark fellow” was also different, in the sense that he said that fellow had been there earlier that night, having been let in at 12.30am, and seemingly was let back in again at the time of the assault on the plaintiff.^[31]
17. [17]
    In relation to his statement to the police, the plaintiff said he believed it was accurate; but also sought to explain various differences between what he told the police 10 days after the event, and what he had said on subsequent occasions, including at trial, on the basis that he “suffered brain bruising for six months”;^[32]that he “did suffer an extensive trauma, and I had a lot of damage to my head at that time… I generalised as much as I could”;^[33]or that he was conveying his “impression” or “memory” now^[34](for example, in relation to the girl or girls being dragged out of the car by their hair).
18. [18]
    It is not disputed that the plaintiff was the victim of an assault on this night. The reference above to inconsistencies in his evidence is, in part, a reflection of the concerns expressed above regarding his credibility and reliability. But more significantly, it is clear that, at trial, the plaintiff was at pains to describe himself as being engaged in carrying out his cleaning duties – in particular, cleaning the carpark - during the whole of this episode. I found this aspect of his evidence artificial and disingenuous.
19. [19]
    Rather, for the reasons which are set out under the next heading, what seems most probable is that the plaintiff left his duties, cleaning inside the restaurant, to go outside and have a cigarette whilst talking to his friend or girlfriend, Terry, who was there with her daughter. While he was outside, Terry and her daughter then became involved in some kind of argument with the two people who approached her car, involving mutual acts of aggression, which unfortunately escalated to the point where the plaintiff was assaulted.

Working arrangements

20. [20]
    The Harbour Town restaurant was a 24 hour operation. The restaurant (where people could sit down and eat, either inside, or in the outdoor dining area) was open until midnight, after which, although the restaurant itself was closed, customers in cars^[35]could use the “drive-through” facility. After the restaurant closed, the whole premises was locked up so that people from outside could not enter the premises. This included the gate which closed off the outdoor dining area.^[36]The restaurant re-opened at 5am or 6am.^[37]
21. [21]
    For the McDonald’s staff, the overnight shift generally commenced at 11pm and went through until 7am (although some people might start a bit later, at 12am, or finish a bit earlier, at 6am).^[38]
22. [22]
    According to the “contract cleaners schedule guide”^[39](cleaning schedule), the contract cleaner’s hours were from 11pm until 7am. However, the plaintiff said he worked from 12am (midnight) until 7am.
23. [23]
    If there were still people in the restaurant at closing time, they would be asked to finish eating and make their way out, being given no more than 5 to 10 minutes to do that.^[40]
24. [24]
    The work the contract cleaner (such as the plaintiff) was required to do was documented in the cleaning schedule, a one page document which was affixed on the inside door of the cleaning cupboard inside the restaurant (this is where the cleaning gear was kept).
25. [25]
    The cleaning schedule is in the following terms:

“  Contract Cleaners Schedule Guide

   Harbour Town

11 - 12pm - Playland/partyroom

12 - 2am - Dining room floors and fixtures

2 - 2.30am - Cafe area

2.30 - 3am - Break

3 - 4am  - Service area and kitchen floors

4 – 5am  - Back of restaurant – Crew toilets and change rooms

5 – 6am  - Patio, Glass-interior and dumpster

6 – 7am  - Carpark and exterior glass

7   - Check with manager if all ok-Finished

Notes:

• Manager must be present when opening back door for security reasons – only during daylight hours.
• No smoking in restaurant.”

26. [26]
    There was consistent evidence that a document in that form was in existence, and in the cleaning cupboard, at the time the plaintiff was working as a cleaner. Mr Atkins, for example, said that such a document has “existed for a long time”, has been “constantly in use, except that the timing might vary slightly”, and “is something that is very consistent with how we actually operate the procedures for cleaning in the store”.^[41]Mr Horden said he believed the cleaning schedule in evidence was the same one that was present in the store as at January 2008, or at least that it was substantially the same.^[42]Ms Anderson referred to the presence, on the inside of the door of the cleaning cupboard, of a “list of where they go, what they do, at what times, and that type of thing, and that was always on the door”.^[43]Mr Laurence gave similar evidence. In particular, in so far as the cleaning schedule provides for the car park and exterior glass to be cleaned from 6 to 7am, the evidence was that that is consistent with procedures in place in the restaurant, for the logical reasons that:

“… it’s the last job that people do, because until it’s light, you really can’t clean outside correctly. And until it’s light, no one sees that it is dirty”.^[44]

27. [27]
    To the same effect, Ms Anderson said the carpark was to be cleaned early in the morning, once it was light. In response to the plaintiff’s allegation that he cleaned the carpark in the early hours of the morning, after midnight, Ms Anderson said “He shouldn’t have been”, explaining that “the carparks, and anything on the outside, wasn’t done until early in the morning. It wasn’t done at night”.^[45]She later said she had never seen the plaintiff clean the carpark at night.^[46]
28. [28]
    Similarly, Ms Bellette said she had never seen a contract cleaner cleaning the carpark while it was dark.^[47]
29. [29]
    Mr Laurence denied ever directing the plaintiff to clean the carkpark in the early hours of the morning.^[48]His evidence was that the cleaners would not go outside until daybreak (a) for safety and (b) for effective cleaning of the carpark (there not being ample light to clean the carpark at night).^[49]As to the issue of safety, this seemed to relate to a direction Mr Laurence referred to as applying across all McDonald’s stores, that staff were not to go outside once the restaurant doors were closed.^[50]This matter is addressed further below.
30. [30]
    In his evidence in chief, the plaintiff denied that there was a schedule set for times he had to do each particular task,^[51]essentially saying that it was up to him what he did and when. However, initially at least, in cross-examination, when shown the cleaning schedule, he said that he had seen a version of it “that I helped create probably three or four months after my employment”.^[52]
31. [31]
    Although he gave evidence of carrying out tasks which was inconsistent in almost all respects with the cleaning schedule, he did say the kitchen could only be cleaned between 3 and 4 am,^[53]which is consistent with the cleaning schedule (and with Mr Laurence’s explanation, that the timing of that task was actually changed, from an earlier time, which was not suitable).^[54]
32. [32]
    The plaintiff said he started work at 12 am (midnight) and, after receiving the keys from the manager, proceeded to pick up rubbish outside and inside the restaurant for about 30-45 minutes. Then he would clean all the tables inside and then clean the tables in the outside dining area. He said he would then do the windows and collect all the rubbish bags from the bins outside and inside. He said that would take him until 1.30 or maybe 2 (am) “depending on how many customers were coming”. From 2am to 7am, he said he would “basically” do windows. In this regard, he said “There was a lot of areas we couldn’t clean because of people still sitting eating in the outside areas, so we – we just rotated back into the inside restaurant, tried to do some windows in there. Then we saw the tables through the outside and went back out and started cleaning there”.^[55]
33. [33]
    Although he used the word “we”, it was uncontroversial that he was the only contract cleaner working at this time. Whilst his evidence, just referred to, is somewhat ambiguous, to the extent that it suggests he could not clean certain areas because of the presence of customers, that is inconsistent with the very clear evidence of the restaurant closing at midnight, and after that, people only being served, in cars, in the drive-through.
34. [34]
    Mr Horden, the general manager, was the person who engaged Panther Cleaning. He recalled meeting with “Peter” of Panther Cleaning, on site at the restaurant, doing a walk around, and going through the detail of what needed to be cleaned. He said he would also have gone through “security procedures and things like that, as in reducing the amount of traffic inside and out of the restaurant”.^[56]Referring to the “cleaning schedule”, Mr Horden said he would have showed Peter the cleaning cupboard, and the “cleaning schedule”, which was taped inside the door of the cleaning cupboard, and that he would have discussed that document with Peter.^[57]
35. [35]
    Mr Horden explained that he knew Peter was not going to be doing the cleaning himself (explaining that he knew Peter owned the cleaning company, and that Peter was then cleaning the Nerang restaurant, even though he owned the company) but that he understood Peter would train his staff to come in and do the cleaning, on the basis of what Mr Horden had shown him.^[58]Mr Horden did not train or “induct” any of Panther Cleaning’s employees himself.^[59]
36. [36]
    Mr Horden considered there was some control exercised, by the manager on duty at the restaurant, over what the contract cleaner was doing, for example checking that the cleaning was finished, and checking the work that had been done.^[60]That is consistent with the cleaning schedule providing for “check with manager if all ok” at 7am. Mr Horden explained that if it was just a matter of something being missed, that would be raised directly with the cleaner, but if it was a more substantive issue regarding the cleaner’s performance, they would go back to Peter of Panther Cleaning.^[61]
37. [37]
    Mr Laurence, who worked at the restaurant from January 2007 until March 2009 as restaurant manager, said when issues arose with the cleaning, he would speak to the manager of the cleaning company, either in person, or by telephone. He recalled meeting with the manager on about 2 or 3 occasions, and having 1 or 2 conversations on the phone, about the standard of the cleaning, and also adjusting the procedure to clean the kitchen floors at a more suitable time (referring to a change from doing that at 11pm, to 2 or 3am).^[62]
38. [38]
    The plaintiff gave evidence of receiving “basic training” from Panther Cleaning (later identifying a particular person, “Serge”, who was working for Peter of Panther Cleaning^[63]), but said that while he was at work he took his direction from McDonald’s.^[64]
39. [39]
    Apart from the “cleaning schedule”, the evidence was to the effect that the staff on duty in the restaurant did not have much involvement with the plaintiff, as a contract cleaner, in terms of directing him what to do. As Ms Anderson said, her duties were to keep the food going to the customer, not so much monitoring everything the cleaner did.^[65]She did not direct the plaintiff what to do. Neither did Mr Laurence.
40. [40]
    However, in my view, the cleaning schedule itself demonstrates a significant level of control and direction by Jomik over what, where and when the contract cleaners were to perform their cleaning duties.
41. [41]
    Having regard to the evidence, I do not accept that the plaintiff was not aware of the cleaning schedule. I find that a document in that form, or substantially in that form, was on the inside door of the cleaning cupboard at the time the plaintiff worked as a contract cleaner at the restaurant and, further, that he would have been aware of it.
42. [42]
    In that regard, it is reasonable to infer that, whatever other training the plaintiff may or may not have received from his employer, he would have been directed to the cleaning schedule, as that formed the basis of the work Jomik contracted with Panther Cleaning to be carried out by the contract cleaner. I accept Mr Horden’s evidence that he would have gone through that document with “Peter”, said to be the owner of Panther Cleaning. It is simply illogical to think that Peter, or some other person from Panther Cleaning, would not direct the very employee that it was sending to its client’s restaurant to clean – the plaintiff – to that cleaning schedule, so that he knew what tasks he was expected to do.
43. [43]
    In so far as the plaintiff gave the following evidence, I do not accept it, on the basis that it is inconsistent with the other evidence received by the court, and in addition inherently implausible:

    1. (a)
       That it was “ongoing”, a “regular occurrence all night” to pick up rubbish outside; that he was required to go out to the carpark “virtually any free chance or opportunity you got”^[66]because there was “constant rubbish and people hanging around”.^[67]The time estimates given for this were widely varying, from “it might take 5 minutes, it might take 15, it might take an hour and a half …” to saying “two or three times during the night, 45 minutes on an average, maybe an hour”.^[68]
    2. (b)
       That he had to clean the carpark in the early hours of his shift, because he couldn’t clean inside due to the presence of “regulars”, five or six people, that regularly dined in there every night, even after midnight when the restaurant closed (later clarifying that this was a period of about half an hour).^[69]
    3. (c)
       That all through his employment the “red-headed manager” (who it became clear was Cynthia Anderson^[70]) told him that the “biggest priority” was to make sure that the drive-through and the outside car parking areas and outside dining areas had to be clean by 5am, because that is when the “owner” came through the drive-through to get a coffee and “presentation was the key”.^[71]

       1. (i)
          The person who was identified as the “owner” was Michael Atkins. Mr Atkins said he would be in the restaurant fairly rarely, and that he definitely was not in the restaurant regularly at 5 am or for breakfast or anything like that. He expressly denied giving any direction to the plaintiff about cleaning the carpark.^[72]

       1. (ii)
          Likewise, Ms Anderson denied that the plaintiff would have been directed to have the carpark cleaned by 5am (and said also that the owner would not come through by 5am to get breakfast).^[73]

       1. (iii)
          Mr Horden categorically denied giving any direction to the plaintiff to clean the carpark at night, before sunlight.^[74]
    4. (d)
       That the car park could not be cleaned after 6am, because that would be “very awkward”, as 5 am was a busy time and all the car parks were completely full.^[75]Ms Anderson said the restaurant was not busy at 5 or 6 in the morning.^[76]
    5. (e)
       That it was essentially up to him what he did and when. This is entirely at odds with the existence of the cleaning schedule, providing for particular areas to be cleaned at particular times, which I accept was for the purpose of ensuring all the different parts of the restaurant were cleaned, at times convenient to the business.
44. [44]
    In addition, I do not accept these aspects of the plaintiff’s evidence either:

    1. (a)
       That McDonald’s “management”^[77]required him to escort staff to their cars. What this came down to, even on the plaintiff’s evidence, was that he may have to let a staff member out of the outside gate when they were leaving, because it locked from the inside, not the outside.^[78]But the evidence otherwise was that:

       1. (i)
          Both of Mr Laurence and Ms Anderson^[79]denied they had asked the plaintiff to do that, with Mr Laurence adding “[t]here’d be no expectation for that to happen”.^[80]

       1. (ii)
          The hours of the overnight shift for the McDonald’s staff were generally 11pm to 7am. By 7am the restaurant was open again (it seemed to open at 5 or 6am) and so staff finishing their overnight shifts could leave without worrying about locked doors and gates.

       1. (iii)
          It was a rare event for someone to leave earlier than that, although Mr Horden said that if that happened, the staff member and the manager would look outside the door, and if there was anybody lingering out there, would call Harbour Town security to escort them to their car.^[81]

       1. (iv)
          The plaintiff’s evidence was otherwise internally inconsistent:  he said the staff weren’t allowed to leave the premises, which is “why they used me with the keys to do those duties”, of escorting staff to the gate, because “someone had to open the gate”.^[82]
    2. (b)
       McDonald’s “management” required him to escort customers out of the restaurant at closing time.^[83]Ms Anderson said it was the responsibility of the manager to ensure the restaurant was cleared at closing time.^[84]Ms Anderson also said she had not come across the issue of a customer refusing to leave when asked to do so, but said she thought if that happened, she would have called Harbour Town security.^[85]Mr Laurence gave similar evidence.^[86]
45. [45]
    It follows that I find that the allegation, in his statement of claim against Jomik,^[87]that he was required to provide “de facto security duties” for Jomik, is not established.
46. [46]
    The plaintiff’s evidence at one point was that when he went outside to see Terry he “was taking advantage of a quick cigarette break and just moving around as if I was working”,^[88]which seems closer to the truth than any of the matters set out in paragraph [43] above. He indicated that he had been told (by management) that he was under surveillance at all times, and so any chance he got to take a break, he would pick up some rubbish while doing it.^[89]To the extent that is the truth, which is by no means clear, what is clear is that picking up rubbish outside “any free chance or opportunity you got” was not part of the system of work established, according to the cleaning schedule.
47. [47]
    In any event, the cleaning schedule made provision for an actual break to be taken, and there were places the plaintiff could have a cigarette break that did not require him to go outside (in the corral area (where the bins were located) and in the outside dining area, part of which is open air^[90]). He said he felt more comfortable smoking outside the front gate,^[91]but it certainly cannot be concluded that he was prevented from smoking elsewhere.
48. [48]
    For the foregoing reasons, I find that, as at January 2008:

    1. (a)
       There was a cleaning schedule, in or substantially in the form of the document in evidence, which set out the areas of the restaurant that the plaintiff was to clean and the times at which that was to be done.
    2. (b)
       The plaintiff would have been aware of the contents of the cleaning schedule.
    3. (c)
       According to the cleaning schedule, he was not required to be outside, cleaning the carpark, until after 6am.
    4. (d)
       The plaintiff had not been observed by staff at the restaurant to be outside, cleaning the carpark, during the night, or before daylight.

Safety and/or security issues as at January 2008

49. [49]
    The plaintiff’s evidence about safety and security issues at the restaurant, and in the carpark, was remarkably different from the evidence given by each of the other witnesses who gave evidence, which included Ms Anderson, Mr Laurence and Ms Bellette, each of whom had frequently worked the overnight shift.
50. [50]
    On the plaintiff’s version, this was a place where violent and dangerous incidents, including assaults, regularly occurred. He said he felt at risk from the very first night he worked there.^[92]He also said he reported this to a person he ultimately said was Mr Laurence, the restaurant manager.^[93]
51. [51]
    The plaintiff gave evidence that he had complained regularly to “head management”, saying that he thought this was Mr Laurence, about the presence of “drunks” in the outside dining area, which prevented him from being able to complete his work in that area.^[94]Mr Laurence denied this, also making the point that once the restaurant closed, there would be no one inside, where the cleaning tasks were to be carried out, except for employees.^[95]
52. [52]
    The plaintiff also said that the gates closing off the outdoor dining area were installed after he complained to management that he was not able to complete his duties due to patrons being intoxicated.^[96]The plaintiff’s evidence was that he was told “specifically by him [Mr Laurence] that that gate was there to ensure my duties and make sure the area was able to be safe and get the job done.”^[97]However, the clear evidence, in particular of Mr Atkins and Mr Horden, was that the gates were installed in order to save staff the time of having to bring the outdoor chairs inside every night.^[98]Mr Laurence denied that he would have said what the plaintiff alleges (he said he assumed the gates were installed to direct customers to the drive-through after the restaurant closed, because they had a sign on them saying something like “drive-through only” which faced the outside once they were closed).^[99]
53. [53]
    The plaintiff’s evidence, both as to the nature and regularity of violent incidents occurring outside the restaurant, and about having made complaints about these issues to managers of the restaurant, and his safety concerns generally, prior to January 2008, is not supported at all by the evidence of the other witnesses.
54. [54]
    In terms of a general description of behaviour in the car park, there was consistent evidence that there would be young people gathering in their cars; occasionally making a lot of noise playing music or drinking; sometimes engaging in “hoonish” behaviour, doing “burnouts”, “donuts and stupid things like that”. Mr Atkins said the issue with these “kids” was “not aggression towards our staff”, and often it was 300-500 metres away from the restaurant.^[100]He said if their behaviour caused an issue, the staff would call Harbour Town security who would move them on.^[101]Similarly, Ms Anderson referred to cars gathering in the front corner of the carpark, usually on a Friday or Saturday night, not generally through the week. She also referred to the Harbour Town security having a presence in the carpark and moving these people on if they were causing a disturbance. She said she had probably called the Harbour Town security once or twice, to do with people making loud noise in that corner of the carpark.^[102]Mr Laurence gave similar evidence, of youths, aged around 19-20, in their cars with loud music, hanging out in the carpark.^[103]
55. [55]
    The evidence was that Jomik had then, and still has an arrangement with the Harbour Town shopping centre security service. Harbour Town security staff patrol around the carpark at various times, in a golf buggy, as well as through the McDonald’s drive-through, and can be called on by Jomik’s staff if required. As Mr Horden explained, if an incident occurred at the restaurant, the staff would call Harbour Town security first and then, if necessary, call the police.
56. [56]
    At the time the plaintiff was working there, Jomik also employed a security guard, but only on Friday and Saturday nights, until midnight, when the restaurant closed. This was due to the volume of people around on those nights, being the two busiest nights of the week. Mr Horden explained that the security guards were “there purely as a deterrent to make sure we didn’t have any trouble”. But he said that arrangement ceased around about 3 or 4 years ago, because there had not been any trouble, there were no incidents, “it was safe without them”, and so it was considered unnecessary to employ them. They are comfortable with the arrangement they have with the Harbour Town shopping centre security staff.^[104]
57. [57]
    The restaurant had also previously employed a security guard all through the night on New Year’s Eve; but likewise, did not continue with that after about 2012 or 2013, because there were no security issues.^[105]
58. [58]
    Regarding the plaintiff’s assertions about the prevalence of violent incidents in the carpark, Mr Horden he said he did not believe they were true. In terms of the car park, after the restaurant closed at midnight, he said:

“… there would be customers who would come and go in drive-through; customers that may stop out the front and eat their food after they’ve gotten food, due to the dining room not being open. Very, very occasionally, you might have some kids that might go out there and do a burn out or something like that, or they might have their music going loud and they might even be moved on by security.^[106]But as far as we’re talking about a violent nature or anything like that, there’s nothing I can recall.”^[107]

59. [59]
    Mr Horden said the plaintiff had never said to him that he felt at risk in doing his duties; and that, as at January 2008, he had never been told by any employee that they felt at risk while working at the restaurant.^[108]
60. [60]
    Mr Atkins said that no safety issues had been raised with him by the plaintiff, nor by any other staff.^[109]
61. [61]
    Ms Anderson said concerns about safety “wasn’t an issue”. She said the plaintiff had not raised any safety concerns with her. She herself said she had no safety concerns, working overnight, saying that she was “actually … quite fine working overnight, because of the fact that the Harbour Town security used to come through. So I never had much of an issue”.^[110]She explained that the Harbour Town security staff would travel around on a golf buggy, do a bit of a check through the drive-through, and “go scooting around the carpark area”, probably every few hours.^[111]
62. [62]
    Ms Bellette also had no concerns about safety while working the overnight shift; had received no complaints from other staff about safety concerns; and had not been told by the plaintiff that he had any concerns about his safety either.^[112]
63. [63]
    Mr Laurence said the plaintiff had not raised any concerns about his safety with him. Further, he said there were no particular safety concerns that he can recall being raised by any other staff. He said he felt quite safe himself, working overnight, since all the entries were closed, including the rear dumpster area (where the bins were located).^[113]Mr Laurence referred to a “direction”, which he said applied across all McDonald’s stores, to the effect that staff not go outside once the restaurant doors had closed. Mr Laurence did not actually seem to know of a specific reason why this direction might have been given.^[114]But it was clear from his evidence that he did not have any concerns about personal safety. He said he would see no difficulty from a personal health or safety perspective about going outside - he had no fear that you might be mugged or something like that.^[115]
64. [64]
    Mr Laurence suggested that the “direction” was in writing. It was called for by the first defendant, but nothing was produced. Neither Mr Atkins nor Ms Anderson were asked about that or volunteered it.
65. [65]
    Mr Horden’s evidence was that it is part of (general) McDonald’s policy that the back door, or the back gate to any restaurant should not be opened in non-daylight hours. The reason for this, he explained, was that historically, when McDonald’s stores, or other fast-food restaurants, have been held up, that would occur by coming through the back door, rather than through the customer area. So it is a “strong policy” that staff never go out the back door after dark. In the Harbour Town restaurant, this “back door” is the back gate to what he called the corral, or what Mr Laurence called the dumpster area. In terms of the front door, Mr Horden said they try to minimise the amount of traffic in and out of the restaurant after it closes, once again, from a hold up point of view.^[116]
66. [66]
    Although there was no direct evidence of what the plaintiff was told about these matters, the plaintiff seemed to be aware of this requirement as he said, at one point in his evidence, that the staff were not allowed to leave the premises (although it was in a confusing context, because he seemed to be saying this was why he was required to escort staff to the gate – but that could only be, even on his evidence, to enable them to leave).^[117]He also was plainly aware of the fact that the doors of the restaurant were locked at midnight when the restaurant closed, and that the gate which closed in the outdoor dining area was also locked.^[118]
67. [67]
    Mr Horden’s evidence was that he would have explained the issue regarding the back door, and the front door, and reducing “traffic” to Peter. In so far as the back door is concerned, this was referred to in the cleaning schedule itself. His evidence also was that if a contract cleaner was not following these protocols, the managers would alert him and he would follow up on it, citing a recent example where that had occurred (a cleaner had tried to go through a back gate at night).^[119]
68. [68]
    In light of the evidence referred to above, I do not accept the plaintiff’s evidence about the prevalence of violent incidents. In particular, I do not accept his evidence about an incident where a person got out of their car, in the drive through, and pulled a gun on the person in the car in front of them.^[120]That would be a significant event which other persons working at the restaurant at this time would be expected to know about if it had actually happened, which they did not.^[121]At one stage, the plaintiff said “violence would seem to be the norm at that restaurant”; initially seeming to say that a person pulling a gun was “the norm”, but then seeming to generalise that “violence occurred regularly”.^[122]
69. [69]
    Likewise, I do not accept his evidence of a “bloody”, or later described as “beaten and bloodied” person jumping through the drive-through window, and the “head manager” asking the plaintiff to “exit that person from the restaurant”^[123]or as he later described it, being asked to hide him in the outside area because there were people chasing him.^[124]This he also said was “the norm”. Cynthia Anderson did recall an incident where someone jumped through the drive-through window. She was on duty. She said she just told them to get out, and they left straight away.^[125]
70. [70]
    I therefore find that, prior to January 2008, there were no significant safety or security issues or concerns at the restaurant or in the nearby carpark. I accept the evidence of the second defendant’s witnesses, as to the description of loutish or hoonish behaviour in the carpark, in particular on Friday and Saturday nights. In so far as safety within the restaurant is concerned, it is apparent that there were protocols in place, which were for the purpose of addressing the risk of holdups inside the store (that is, reducing traffic in and out of the restaurant after it was closed), which is to be distinguished from a known threat of danger or violence outside the restaurant.
71. [71]
    Against the background of that factual context, I turn to consider the issue of liability.

Liability

72. [72]
    Determination of the issue of liability requires consideration of the following questions:

    1. (a)
       What was the duty of care owed by each of the first defendant and the second defendant to the plaintiff?
    2. (b)
       Was there any breach of each defendants’ duty of care?  Which requires consideration of:

       1. (i)
          Whether the risk of injury was reasonably foreseeable; and

       1. (ii)
          If so, what a reasonable person in the position of the defendants would have done in response to that risk.
    3. (c)
       If there was a breach, did it cause the alleged injuries, or any of them, to the plaintiff?

Duty of care

Panther Cleaning

73. [73]
    As the employer of the plaintiff, it was not controversial that Panther Cleaning owed him a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury.^[126]Among other things, the duty obliges an employer to take reasonable steps to provide a safe place of work and a safe system of work.^[127]The obligation to provide a safe system of work extends to security of the personal safety of the employee.^[128]

Jomik

74. [74]
    Jomik argued that it did not owe any duty of care to the plaintiff, being no more than the occupier of the restaurant where the plaintiff was working, and there being no special relationship between Jomik and the plaintiff such as to give rise to a duty of care.^[129]
75. [75]
    As Gleeson CJ observed in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 (Modbury) at [14], where there is a problem, or an issue, as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable.^[130]
76. [76]
    Here, as in Modbury, the direct cause of the harm suffered by the plaintiff is the criminal conduct of third parties.
77. [77]
    As a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.^[131]
78. [78]
    On this basis, an occupier, who has control of and knowledge of the physical state of the land it occupies, but not control over access to the land it occupies, could not be said to owe a duty to take reasonable care to prevent injury to an entrant on that land resulting from the criminal behaviour of third persons on the occupier’s land, because such conduct is out of their control.^[132]
79. [79]
    However, one of the circumstances in which a duty may be owed, because of the nature of the relationship between the occupier and the entrant, is where those persons are, respectively, employer and employee. As Hayne J observed, in Modbury at [110]-[111], the reason why an employer may owe an employee a duty to take reasonable care to avoid the employee, for example, being robbed,

“… is because the employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken.

In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party…”^[133]

80. [80]
    That principle may also apply where the occupier, although not in fact the employer, has a relationship with the entrant which is analogous to the relationship between employer and employee.
81. [81]
    This was the basis on which it was held by the New South Wales Court of Appeal, in English v Rogers (2005) Aust Torts Reports 81-800, that a hotel owner, which had contracted with the plaintiff’s employer for the provision of cleaning services to the hotel, owed a duty of care to the plaintiff cleaner, who suffered psychological trauma as a result of being taken hostage by a masked gunman whilst working at the hotel. The duty was also found to be owed on the “overlapping” basis that the hotel “exercised a coordinating role in a situation when its activities helped create the relevant risk”, attracting the principles in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Brodribb).^[134]
82. [82]
    Some of the factors referred to in that decision as supporting the conclusion that the relationship between the hotel and the cleaners was analogous to that of employer and employee, included (at [85]):

    1. (a)
       the plaintiff’s access to and within the workplace was controlled by the hotel, whose managers also gave him directions from time to time as to the mode of performance of his work;
    2. (b)
       this included instruction about what he was to do in order to keep the hotel premises secure from thieves;
    3. (c)
       the managers explained the job to the plaintiff initially, in company with the employer and they used to point out areas of cleaning left undone.
83. [83]
    Likewise, in Karatjas v Deakin University [2012] VSCA 53, the Victorian Court of Appeal held that the University owed an analogous duty to the plaintiff who was the employee of a contractor engaged by the University to conduct the cafeteria for students and university staff. In this case, reliance was also placed on the reasoning in Brodribb, in relation to which Nettle JA (as his Honour then was) (with whom Hansen JA and Kyrou AJA agreed) said, at [34]-[37]:

“In Brodribb, Mason J said that, where a party engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work, and where there is a need for that party to give directions as to when and where the work is to be done, that party has an obligation to prescribe a safe system of work, and the fact that the contractors are not the party’s employees or that the party does not retain a right to control them in the manner in which they carry out their work, does not affect the existence of the party’s obligation to prescribe a safe system of work. Wilson and Dawson JJ, Brennan J and Deane J expressed similar views.

Parity of reasoning implies that, where a defendant retains an independent contractor to carry out work; the contractor carries out the work through the agency of employees; and there is a need for the defendant to give directions as to when and where work is to be done by those employees, the defendant owes to the employees an obligation to provide a safe system of work in relation to those aspects of the work.

Of course, there is a difference. In Brodribb, there was a contractual relationship between the principal and the contractor. In a case like this, where the principal retains a contractor and the contractor engages the employees, there is no contract between the principal and the injured employee. But the lack of a contract is not determinative. Liability in negligence turns on foreseeability and proximity, the total relationship between the parties and questions of fairness, policy, practicality, proportion, expense and justice.  Contract aside, the question is whether it is reasonable to require the principal to have in contemplation the risk of injury to the worker which eventuates. Hence, as English shows, where a principal retains a contractor who engages employees, but the principal retains control over some aspect of the work, it may be reasonable for the principal to have in contemplation the risk of injury to the contractor’s employee arising out of that aspect of the work.

More generally, in terms of foreseeability, it can be just as foreseeable that the employees of the contractor are likely to be hurt in carrying out that aspect of the work as if the principal had retained the employees directly. In terms of proximity, or the total relationship between the parties, there may be little in reality to distinguish between the relationship between principal and contractor with respect to an aspect of the system of work over which the principal retains control and the relationship between principal and contractor’s employee with respect to an aspect of the system of work over which the principal retains control. And in terms of ‘principle and policy’, the ‘fact-value complex’ and ‘questions of fairness, policy, practicality, proportion, expense and justice’, where a principal retains control over some aspect of the system of work, it is likely to be just as reasonable to require the principal to have in contemplation the risk of injury to an employee of a contractor as it is to have in contemplation a similar risk to the principal’s employee.”^[135]

84. [84]
    In this case, the evidence was that Jomik did control a significant aspect of the system of work, that is, by directing what, where and when the plaintiff cleaned different parts of the restaurant, in accordance with the cleaning schedule. There was also a level of control exercised, by the requirement to check in with a manager at the end of the shift, to make sure everything had been done. That Jomik did not directly train the contract cleaners, including the plaintiff; and that broader issues regarding the standard of cleaning were dealt with as between Jomik and Panther Cleaning (as distinct from highlighting things that had been missed), does not detract from this conclusion.
85. [85]
    It follows that, in my view, Jomik did owe the plaintiff a duty of care, analogous to the duty owed by his employer.
86. [86]
    The position of Jomik is not analogous to that of the shopping centre owner in Modbury, which had no special relationship with the plaintiff in that case. In that case, “[t]here was nothing about the relationship which relevantly distinguished [the plaintiff] from large numbers of members of the public who might have business at the [shopping centre] or might otherwise lawfully use the car park”.^[136]That cannot be said to be the case here.
87. [87]
    The duty which Jomik owes is, however, not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken.

Breach of duty

88. [88]
    Under the common law principles, in considering whether there has been a breach of the duty of care owed, it is first necessary to consider whether a reasonable person in the defendant’s position would have foreseen the risk of injury and, if so, to determine what a reasonable person would do by way of response to the risk. As explained by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:

“A risk of injury which is quite unlikely to occur …, may  nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But … the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”^[137]

89. [89]
    The risk of injury in this case is a risk of being physically assaulted in the area outside the restaurant.^[138]
90. [90]
    Importantly, the assessment which Shirt calls for must be undertaken prospectively, from a time before the assault, rather than retrospectively, with the benefit of hindsight, after the event.^[139]
91. [91]
    Neither defendant submitted that the risk of injury was not foreseeable, which was appropriate, since it could not be said the risk was far-fetched or fanciful.^[140]
92. [92]
    The focus of their arguments was on what a reasonable person’s response to that risk, in the circumstances of this case, might be, having regard to the magnitude of the risk and the degree of probability of its occurrence, both of which were said to be very low.
93. [93]
    On the evidence that has been referred to, it is reasonable to conclude that both the magnitude of the risk of a person, whether an employee or contract cleaner, at the McDonald’s restaurant at Harbour Town suffering injury as a result of a physical assault outside the restaurant, and the probability of that eventuating, were extremely low.
94. [94]
    On the evidence which I have accepted, there was no history of violent incidents, including assaults, occurring in the carpark prior to 18 January 2008. None of the staff from whom the court heard evidence, which included staff working the overnight shifts, had any concerns about their safety. None of those witnesses had received complaints from other staff members about safety concerns. The only conduct to speak of was hoonish behaviour of youths in their cars in the carpark, mostly on Friday and Saturday nights, whom it seems were readily dealt with, if they became disruptive, by being moved on by the Harbour Town security staff. They were not considered to have posed any threat to people working at the restaurant. There was also, according to Mr Horden, a naturally precautious approach taken, if staff were leaving work earlier than the ordinary shift finish time of 6 or 7 am, of looking outside to make sure no one was loitering before proceeding to their cars (which was not on the evidence something done in response to any particular incident having occurred). In so far as there was a security risk perceived at the restaurant itself, that was a general risk, applying across all McDonald’s restaurants, concerned with people coming into the restaurant, after it closed, and holding it up. However, that risk had not eventuated at this particular restaurant either.
95. [95]
    Moreover, there was no reason for the plaintiff to be outside in the carpark at the time that he was. According to the cleaning schedule, all of his work was to be carried out inside the restaurant, until 6 am. If he needed a break, including a cigarette break, that was also able to be taken within the confines of the restaurant.
96. [96]
    The particular want of care which the plaintiff alleges is a failure to enforce the system of work, in particular, failure to enforce the cleaning schedule, and failure to enforce the “direction” not to go outside at night.^[141]In his written submissions the plaintiff referred to a failure to properly instruct, induct, monitor and supervise the plaintiff.^[142]
97. [97]
    On both accounts, on the basis of the findings made above, the plaintiff has failed to discharge the burden of establishing such a want of care, on the balance of probabilities. In summary, the court finds that:

    1. (a)
       the plaintiff knew about and performed his duties in accordance with the cleaning schedule;
    2. (b)
       the plaintiff had not been observed by staff at the restaurant to do otherwise – in particular, he had not been observed to be going outside to clean the carpark in the early hours of the morning, before daylight;
    3. (c)
       therefore, there is no basis to find that there was any failure to enforce the cleaning schedule;
    4. (d)
       there was no requirement, according to the cleaning schedule,  for the plaintiff to work outside the restaurant before 6 am, and he was not directed by any member of Jomik’s staff to do so;
    5. (e)
       the effect of the system of work, embodied in the cleaning schedule, was that the contract cleaner would not be required to go outside at night;
    6. (f)
       there were appropriate security measures available at the restaurant, in the form of the requirements for locking doors and gates, and the availability of the Harbour Town security staff if required;
    7. (g)
       the plaintiff was aware of the need to keep the doors to the restaurant, and the  gate to the outside dining area, closed and locked once the restaurant was closed;
    8. (h)
       those requirements were primarily to minimise traffic into and out of the restaurant after it closed, in order to minimise the risk of a holdup – rather than because of any known risk to personal safety of staff outside the restaurant.
98. [98]
    In any event, the court further finds that regardless of any enforcement of the cleaning schedule, and any directions about leaving the restaurant at night, in the circumstances, it is likely the plaintiff would have gone outside to see his friend, Terry. As to the circumstances existing when he went out to see Terry, the plaintiff said “[t]hat was actually a good time. There was – there was no one around. It was great.”^[143]For that reason, the want of care alleged on behalf of the defendants, even if it had been established, would not have averted the harm that ensued, namely, a physical assault by third parties over whom neither Jomik nor Panther Cleaning had any control.^[144]
99. [99]
    The plaintiff has not established that either of the defendants were 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 area outside the restaurant, and the degree of probability of that occurring, both of which were, on the evidence, very low, it has not been established that there was anything more that could or should reasonably have been done by either of the defendants which would have averted or avoided that risk.
100. [100]
     That the assault took place is, as noted at the outset, a very unfortunate circumstance, but one the responsibility for which lies at the feet of those third parties criminally responsible for it, and not with either of the defendants.
101. [101]
     For those reasons, there will be judgment for the defendants.

Quantum

102. [102]
     Notwithstanding my conclusion reached on liability, it is appropriate that I address the issue of quantum, as well as the arguments concerning apportionment of liability as between the defendants, in any event.

Injuries

103. [103]
     In [5] of the plaintiff’s statement of claim, the injuries suffered as a result of the assault are alleged to be:

     1. (a)
        minor closed head injury
     2. (b)
        chronic adjustment disorder and anxiety;
     3. (c)
        aggravation of previous right shoulder surgery;
     4. (d)
        soft tissue injury of the right ribs;
     5. (e)
        painful right elbow;
     6. (f)
        soft tissue injury of the right shin;
     7. (g)
        contusion around the eyes;
     8. (h)
        scarring of the lip, chin and scalp following trauma;
     9. (i)
        strain of the cervical and thoracolumbar spines with ongoing subjective symptoms but no significant clinical findings;
     10. (j)
         undisplaced nasal fracture;
     11. (k)
         possible soft tissue injury of the left ankle.
104. [104]
     The plaintiff presented at the Emergency Department of the Gold Coast Hospital shortly after 2am on 18 January 2008. On examination, he was found to have a painful right rib, right elbow and right shin, some bruising to his left eye and a split lip which required sutures. A CT scan of his head showed an undisplaced fracture of his nasal bones, but no intracranial abnormality. He was discharged later on 18 January 2008.^[145]
105. [105]
     The plaintiff’s evidence at trial was that he had a 10cm by 3 cm “dint in my skull”; that his teeth were driven into his lip; that he had scars all over his lips and also bruises on his right elbow and “virtually all over my body” and that his right shoulder had been agitated. He also said he required ongoing psychiatric support and counselling since the assault.^[146]The presence of a large “dint” in his skull is not supported by the hospital records. Nor is any complaint of right shoulder pain.

Aggravation of shoulder pain

106. [106]
     It is apparent from the medical records in evidence that the plaintiff did not complain of shoulder pain until some months after the assault.
107. [107]
     The plaintiff had injured his right shoulder at work 6 years before, in 2002, resulting in surgery.  There was evidence of a WorkCover claim made by the plaintiff in relation to that injury, as well as a resulting psychological disorder, in respect of which the plaintiff received $250,000 by way of compensation.^[147]
108. [108]
     In this proceeding, the plaintiff claims that his right shoulder injury was aggravated as a result of the assault.
109. [109]
     Dr Stabler, who treated him for his 2002 injury, gave evidence at the trial, both in the form of various written reports, and orally. In his report of 7 May 2009, Dr Stabler noted the presence of a tear of the right rotator cuff, but expressed “significant doubt” about the chronology, in terms of the complaint of pain in the right shoulder by the plaintiff. Whilst he could not exclude the assault on 18 January 2008 as a cause of the current pathology in the right shoulder, he said the evidence was against a definite association.^[148]
110. [110]
     In his later report, dated 15 August 2013, after a careful analysis of medical records, to which reference will shortly be made, Dr Stabler reiterated that, although the assault on 18 January cannot be totally excluded from being a contributory cause to the “partial thickness tear of the supraspinatus tendon in the right shoulder”, “the time line and lack of medical documentation is strongly against a direct association between the incident of 18/1/2008 and the onset of symptoms in the right shoulder”.^[149]He described the plaintiff as over presenting, both in terms of the history he gave to Dr Stabler, and on examination. Dr Stabler said that, although the plaintiff is suffering from a whole person impairment (as a result of the 2002 work injury), he did “not consider that the whole person impairment can be attributed to the incident of 18/1/2008”.^[150]
111. [111]
     Dr Stabler’s analysis of the chronology of medical documentation in the period immediately following the assault begins with the Gold Coast Hospital Emergency Department records:

“The presenting problem was head and musculoskeletal trauma post assault. The indication is that the claimant was hit from behind and lost consciousness for up to 15 minutes. There was no loss of continence or vomiting.

Examination revealed pain in the right ribs, the right elbow and the right shin. There is no mention at that time of any pain in the right shoulder.

Plain x-ray films were taken but the areas in question appear to have been the chest, the right elbow and the right shin as well as the cervical spine. There is no mention of any investigations for the right shoulder.

The claimant was subsequently seen in the out-patient clinic on 18^th January 2008 and all of the investigations including Computerized Tomography scan of the head was normal apart from an undisplaced nasal fracture. The claimant was discharged.

The claimant subsequently attended General Practitioner on the 23^rd January 2008. The claimant was seen by Dr Sergey Bromberg.

Dr Bromberg mentions the undisplaced nasal fracture, nausea and dizziness, peri audible bruising on the left side and bruising of the left forehead together with sutures in the lip. There is no mention of shoulder pain.

Subsequently the claimant was seen on Saturday 26^th January 2008 by Dr Bromberg.

The claimant had headache and nose pain with less severe dizziness and there is no mention of right shoulder pain.

The claimant was then seen 31^st January 2008 by Dr Bromberg and again there is no mention of right shoulder pain.

On the 8^th February 2008 there is still no mention of right shoulder pain when the claimant was seen by Dr Bromberg for lethargy and inability to work the full day.

On 14^th February 2008 Dr Bromberg saw the claimant again and detailed a number of areas of concern including the dizziness, right chest pain, pain in the nose and pain in the right shin but there is no mention of right shoulder pain. Left peri audible bruising and tenderness of the right ribs and nose pain was noted.

On 16^th February Dr Bromberg indicates that the claimant has had x-rays ordered but that he was unable to afford them. There is no mention of right shoulder pain.

The claimant was again seen on a number of occasions including the follows:

• 19^th February 2008
• 1^st March 2008
• 26^th March 2008
• 21^st October 2008

Throughout that whole time there is no mention of right shoulder pain.

Finally on Wednesday 19^th November 2008 Dr Bromberg records ‘still right shoulder pain’ which indicates that the claimant had been complaining of right shoulder pain at some stage but it had not been recorded anywhere in the notes of Dr Bromberg prior to 19^th November 2008.

Subsequently the claimant was seen for his right shoulder again on 22^nd December 2008 and the onset of pain is given as 22/12/2008 (even though mention is made of right shoulder pain 19^th November 2008).”^[151]

112. [112]
     It was not suggested, on behalf of the plaintiff, that this summary was inaccurate. When it was put to the plaintiff that he had not complained of any pain in his right shoulder for some months after the assault, by reference to Dr Stabler’s summary, the plaintiff explained this on the basis that he had been suffering six months of brain bruising, that he was not coherent, that he was fairly numb, having been hit in the head^[152](even going so far on one occasion as to assert that he had been tasered in the course of this assault, on the basis of something he read in the police report^[153]).
113. [113]
     Although it was put to Dr Stabler that the plaintiff’s shoulder pain could have been masked by other factors, such as a severe head injury, Dr Stabler was very clear in his evidence that this was extremely unlikely. His evidence was, in a general sense, that this could possibly happen, but for a period of no more than six weeks, because by about 6 weeks, injuries are beginning to stabilise, and if patients still have pain at that time they are always aware of it. He further said that, in the case of the plaintiff, he did not consider it to be possible that any other injury was masking shoulder pain, because:

“[he] was able to complain of pain in many, many other areas, which were minor injuries and … if he had had pain anywhere in his shoulders or anywhere else then it is unreasonable to suggest that he would not have been able to notice those pains, regardless of what [head]^[154]injury he had. A [head] injury would not cause you to specifically be unable to recognise pain in some areas but [not] in others. For example, the right elbow. He noticed pain in the right elbow. I cannot agree that he would not have noticed pain in the right shoulder, for example.”^[155]

114. [114]
     The plaintiff relied upon expert evidence from Dr Gillett, orthopaedic surgeon, who provided reports dated 29 July 2010 and 17 January 2011, and gave oral evidence.
115. [115]
     Dr Gillett expressed the opinion, in his reports, that the plaintiff had suffered an aggravation of his pre-existing right shoulder condition. He found there was no injury to the neck or lower back.^[156]Dr Gillett assessed the plaintiff as having a 10% loss of whole person function, with 6% of that reflecting the pre-existing pathology and 4% “as I see him on the day of my assessment”.^[157]
116. [116]
     But importantly, Dr Gillett agreed that, if the plaintiff had not complained of right shoulder aggravation or pain until some months after the assault, that would make the connection between the assault and any right shoulder impairment tenuous. He said that, in general terms, symptoms coming two months after an assault would not be related.^[158]
117. [117]
     In terms of the impact of the shoulder condition on his ability to work, Dr Gillett’s opinion, as clarified in his oral evidence, was that physically, he would be able to return to the workforce at the level he was prior to the assault of 18 January 2008. That is, to work physically with his right shoulder as it was at the time he was working for McDonald’s (acknowledging, however, the ongoing difficulties associated with the previous 2002 injury).^[159]
118. [118]
     On the basis of the evidence, the plaintiff has not established, on the balance of probabilities, that he suffered any aggravation to his pre-existing right shoulder condition, as a result of the assault.

Chronic adjustment disorder and anxiety

119. [119]
     The plaintiff also had a pre-existing psychiatric or psychological disorder, as a result of his 2002 workplace injury, which was aggravated by his 2003 car accident.
120. [120]
     As already noted, he claims to have suffered a chronic adjustment disorder and anxiety as a result of the assault. He relies upon the opinion of Dr Chalk, psychiatrist, in this respect. Dr Chalk describes the condition as “a chronic adjustment disorder with depressed and anxious mood”.^[160]Dr Chalk assessed the plaintiff as having a 17% whole person impairment on the basis of this psychiatric condition; although expressed the view that this may well halve with appropriate treatment^[161](which he says would involve both psychological and pharmacological treatment).^[162]
121. [121]
     However, the plaintiff significantly downplayed his pre-existing condition to Dr Chalk. Dr Chalk recorded that, as a result of his 2002 injury “he was deemed to have an adjustment disorder with depressed mood at that time and had some treatment from Dr Norman Barling over a period of six months”.^[163]In addition, the plaintiff also failed to tell Dr Chalk about the 2003 car accident. It is apparent from other material that in fact the plaintiff continued to suffer the symptoms of that previous condition for a considerable period of time, and that the 2003 car accident also had an aggravating effect on it.
122. [122]
     In this regard, reference was made to a report of Dr Nurcombe, a forensic psychiatrist, who evaluated the plaintiff on 7 February 2006.^[164]It seems the plaintiff was referred to Dr Nurcombe in the context of the plaintiff’s claim for damages in respect of the car accident in 2003. Amongst other things, Dr Nurcombe reported, on the basis of his mental status examination, that the plaintiff experiences anxiety, panic attacks, irrational fears of driving and personal contact, depression, irritability, and suspiciousness; his appetite is poor; he has experienced considerable weight loss; his sleep is impaired as is his enjoyment of life.^[165]Dr Nurcombe diagnosed the plaintiff then, in February 2006, as suffering from “adjustment disorder with depressed mood and anxiety, chronic, moderate to severe”, together with a pain disorder and personality disorder with mixed paranoid, schizoid and obsessive-compulsive traits.^[166]
123. [123]
     Dr Nurcombe noted that the treatment of the plaintiff’s disorder had been inadequate, and made recommendations regarding his future treatment. That included evaluation in relation to appropriate psychotropic medication, together with psychotherapy.^[167]It may be noted that, even by the time the plaintiff saw Dr Chalk in March 2015, despite “extensive contact with psychiatrists, and psychologists”, the plaintiff had still not “availed himself of appropriate psychopharmacological treatment”, which Dr Chalk said may well offer him the chance of significant improvement.^[168]
124. [124]
     The plaintiff was evasive when questioned about the symptoms described in Dr Nurcombe’s February 2006 report at the trial.^[169]He feigned lack of memory; or at times agreed with various propositions saying things like “I assume so if it’s on the papers”. Just to take one example, in respect of whether he had smoked cannabis, which was recorded by Dr Nurcombe:

“--- smoking or – you were smoking cannabis? – Well, if it’s on the report, obviously, they must have done blood tests to see that, sir.

Well, what’s your recollection, sir?  Were you smoking marijuana? – Not as far as I know, I haven’t.”^[170]

125. [125]
     None of the information which appears in Dr Nurcombe’s report had previously been disclosed to Dr Chalk by the plaintiff. Dr Chalk was seemingly shown a copy of the report, by the lawyers for the first defendant, on the morning before he gave evidence.
126. [126]
     Dr Chalk agreed, having been shown Dr Nurcombe’s report, that there is “a significant overlap between the symptomatology” referred to in Dr Nurcombe’s report, and complained of to him by the plaintiff.^[171]When it was suggested that would cause Dr Chalk to question the reliability of his opinion, that the plaintiff has a psychiatric condition as a result of the assault, Dr Chalk said he would not be concerned about the view that the plaintiff may have developed some psychiatric problems as a consequence of the assault in 2008, but would be concerned about the level of difficulty, symptomatology and recovery that he had from the previous events. He agreed it would be very difficult to disentangle the pre-existing psychiatric problems, from any problems occasioned by the 2008 assault.^[172]
127. [127]
     There are two other matters, of which Dr Chalk was not aware, but which were drawn to his attention in cross-examination. The first concerned a more recent incident, in December 2014. The plaintiff was also evasive about this when questioned in cross-examination, describing it as an “awkward situation” (later a “slight run-in”^[173]) where he asked some flatmates to leave because they weren’t paying rent.^[174]But it is clear there was a reasonably significant violent altercation, resulting in the plaintiff being taken to the emergency department of the local hospital, alleging he received multiple blows to his head/face/chest, and was struck with a machete, resulting in defensive wounds to his hands.^[175]He explained his lack of memory of the event on the basis that he was “intoxicated from medication”.^[176]Yet he had been able to recount the event in reasonable detail when seeing Dr Lichter, his psychiatrist, shortly afterwards.^[177]
128. [128]
     This event was not disclosed to Dr Chalk, when he saw the plaintiff on 20 March 2015. When it was drawn to his attention, in cross-examination, Dr Chalk said that if the plaintiff was the victim in respect of that event, that may also have had a significant effect on him, aggravating any persisting symptomatology.^[178]
129. [129]
     The second matter is that it was clear that the description of the assault given by the plaintiff to Dr Chalk was a matter of significance in terms of the psychological impact of it.^[179]As already noted, the plaintiff told Dr Chalk that he was assaulted for about a half an hour; whereas in fact the plaintiff was rendered unconscious almost immediately, and did not recall anything about the assault.
130. [130]
     As for his ability to work, Dr Chalk said that if the plaintiff had the treatment he recommended, he could see no reason why he could not return to some form of gainful employment in the future. He said, “given the length of time all of this has been going on”, he thought 18-24 months would be a reasonable period of time.^[180]
131. [131]
     On balance, whilst it may be accepted as reasonable that a person may experience some kind of psychological problems as a result of being assaulted, on the evidence, it has not been established, on the balance of probabilities, that in so far as the plaintiff suffers from chronic adjustment disorder, with anxiety and depressed mood, that was caused by or, for that matter, aggravated in any significant respect, by the assault. The plaintiff’s psychiatric difficulties were long-standing prior to the assault. The difficulty of disentangling the pre-existing symptoms, from any additional effect of the assault, as well as the impact of the subsequent event in December 2014; coupled with the issues regarding the plaintiff’s credibility, which are only compounded by his failure to disclose the extent of his pre-existing condition and other matters to Dr Chalk, militate against any other conclusion.

Other injuries?

132. [132]
     On the basis of the hospital records, it is reasonable to conclude that the plaintiff otherwise suffered some physical injuries as a result of the assault, including a painful right rib, right elbow and right shin, some bruising to his left eye, a split lip with required sutures and an undisplaced fracture of his nasal bones.

Assessment of damages

General damages

133. [133]
     The court was not referred to any particular authorities, keeping in mind this claim is to be assessed on the basis of the common law, not the legislative regimes now in place. Having regard to the findings above, I accept that an appropriate assessment for pain, suffering and loss of amenities may be $25,000.^[181]

Economic loss

134. [134]
     For the first defendant, it was submitted that an amount of no more than the net weekly workers’ compensation payments in fact received by the plaintiff should be allowed (being $75,566.09). That seems a very significant amount, given the findings above, which lead logically to the conclusion that, in so far as the injuries caused by the assault are concerned (as opposed to pre-existing injuries and conditions), the plaintiff ought not to have been prevented from working for a considerable period of time.
135. [135]
     In this regard, I accept as reasonable the second defendant’s submission that a period of no more than six months be allowed for past economic loss. The plaintiff’s evidence was that he was earning $960 gross per week at the time. According to his submissions, the payments made by WorkCover show that he was being paid the sum of $625.96 net per week.^[182]On the basis of, say, 26 weeks at $625.96 per week that amounts to a sum of $16,275.00 for past economic loss.
136. [136]
     The plaintiff has not established any entitlement to recover for economic loss in the future, as a result of injuries caused by the assault.
137. [137]
     I have found his shoulder condition was not aggravated by the assault, but in any event, his own evidence is that he can work with his shoulder condition;^[183]and likewise Dr Gillett expressed the view that he would be physically capable of returning to the same level of work as he was prior to the assault.
138. [138]
     In so far as his psychiatric condition is concerned, similarly I have found that was not caused by or, for that matter, aggravated in any significant respect, by the assault. The plaintiff says he “can’t even leave the house” because of his psychiatric condition.^[184]Dr Chalk says he would be capable of gainful employment in the future, and estimates 18-24 months as reasonable for recovery, with appropriate treatment. But for the reasons already given, the balance of probability does not favour a conclusion that any such impairment as the plaintiff suffers, due to his psychiatric condition, can reasonably be said to be causally related to the assault.
139. [139]
     In order to recover an award for economic loss it must be demonstrated that the injured person’s negligence-caused impairment has resulted in loss in monetary terms. The principle was confirmed in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 per Deane, Dawson, Toohey and Gaudron JJ:

“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that ‘the diminution of … earning capacity is or may be productive of financial loss.’”^[185]

140. [140]
     Neither of those requirements has been satisfied in this case, in so far as the injuries found to be causally related to the assault are concerned.

Special damages

141. [141]
     The first defendant submitted an amount of no more than $30,000 be allowed for special damages, again reflecting the expenses incurred by WorkCover of $29,145.80.
142. [142]
     In the absence of specific evidence, the plaintiff claimed, in addition to that amount, global amounts of $2,000 for Medicare payments and $2,000 for travel expenses and pharmaceutical expenses, in the past.
143. [143]
     The second defendant submitted that the plaintiff’s claims about his own expenses are unreliable and unsubstantiated and on that basis no more than $5,000 ought to be allowed, reflecting past expenses, with no award for future expenses.
144. [144]
     The plaintiff also claims $10,560 for future medication (for the next 22 years); $24,780 (for the cost of psychiatric treatment for the next 10 years) and $5,000 (for travel and attendance on general practitioners).
145. [145]
     The evidence given by the plaintiff was unsatisfactory in a number of respects in relation to these matters also. For example, he said that he had not taken panadeine forte prior to the assault,^[186]and took it regularly afterwards, but that is plainly wrong having regard to the medical notes, which show that he was consistently prescribed panadeine forte over the period from December 2003 to August 2005.^[187]Likewise, his evidence that he takes more Mersyndol now than he did before the assault, was contradictory and confused.^[188]
146. [146]
     More problematic, though, are the findings above regarding the injuries which can be said to have been caused by the assault. The need for ongoing pain medication is not shown to be causally related to the injuries caused by the assault. In so far as psychiatric treatment is recommended, for the reasons already outlined, including at paragraph [131] above, the cost of that cannot properly be said to be recoverable from the defendants.
147. [147]
     On balance, and given the evidence (including the lack of it) and findings, in my view to award the whole of the $30,000 as special damages, as submitted by the first defendant, is out of proportion. A reasonable assessment for special damages, in the circumstances of this case, would in my view be no more than $5,000, as submitted by the second defendant.

Fox v Wood

148. [148]
     The parties were agreed that the plaintiff ought to also be awarded an amount of $13,879, representing payments made by WorkCover to the Australian Taxation Office.

WorkCover Refund

149. [149]
     It is to be noted that, in so far as the first defendant, Panther Cleaning is concerned, there would have to be a deduction from any damages assessed as payable by it, of the refund due to WorkCover of $118,590.89.

Apportionment of liability as between Panther Cleaning and Jomik

150. [150]
     In the event that they were to be found liable, each of Panther Cleaning and Jomik sought contribution from one another under s 6(c) of the Law Reform Act 1995 (Qld). Under s 7 of that Act, the “amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage.”
151. [151]
     Panther Cleaning submitted that an appropriate apportionment would be that it bear 20% of any damages and Jomik bear 80%, on the basis that there was little opportunity for Panther Cleaning to have become aware of the relevant risk, or that the cleaning schedule was not being followed. In addition, it was emphasised that Jomik controlled the security aspects of the restaurant and for that reason ought to bear a significantly higher proportion of responsibility.
152. [152]
     On the other hand Jomik submitted that an appropriate apportionment would be 60% against Panther Cleaning and 40% against itself, on the basis that it was Panther Cleaning which was responsible for training the plaintiff (there being no evidence called to contradict the evidence of Mr Horden as to his expectation in that regard).
153. [153]
     For Panther Cleaning, reliance was placed on Duong v Versacold Logistics Ltd & Ors [2010] QSC 466, a case in which the host employer was held to be 70% responsible for the workplace accident, and the employer (labour hire company) 30%. However, the facts in Duong are quite different from those here. In that case, the relevant breach of duty was the failure of the host employer to have an adequate cleaning program in place, which would have kept the floor clear of debris (it being found that some pieces of debris on the floor is what caused the steering wheel of the pallet jack being driven by the plaintiff to jerk, causing him to fall off and injure himself). It was found that the host employer was primarily responsible for the day to day management of the site, as occupier and the entity in control. It was also found the employer had given the plaintiff requisite instruction and training; had conducted safety audits and maintained a presence at the work site; although was aware of a cleaning problem and failed to ensure the host employer adequately dealt with it. Having regard both to the nature of the breach, and to the steps the employer had in fact taken to secure the safety of its employees, the significantly greater apportionment to the host employer stands to reason.
154. [154]
     A similar apportionment, as between the employer (labour hire company) and host employer, 25% to 75% respectively, was regarded as appropriate in TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 at [97]. That was in circumstances where it was found that the host employer exercised day to day control over the plaintiff’s work activities, treating him to all intents the same as its employees as regards work on the factory floor; where everything the plaintiff did was done under the full control of the host employer (at [41]).
155. [155]
     However, that is not the situation here and, further, there was no direct evidence of any particular steps taken by Panther Cleaning to ensure the safety of its employee. As Mason P observed in English v Rogers (2005) Aust Torts Reports 81-800 at [41], the employer’s non-delegable duty cannot be “sloughed off by sending the employee to a remote location under another’s control”. In circumstances where there is nothing to suggest the employer took any particular measures of its own, or gave any particular instruction to the plaintiff on the topic of safety, it may be said that the employer assumed the host employer’s safety measures would be adequate for its employee. In that context, and as Mason P said in English v Rogers at [43]:

“… the reasonableness of the employer’s measures is to be judged by the reasonableness of those adopted by the [host employer] as regards the plaintiff. This is not because of some principle of vicarious liability, but simply recognition that the employer cannot in the particular circumstances shield behind the [host employer] with respect to the discharge of his non-delegable duty of care. The employer will be liable if the safety measures allowed to remain were unreasonably unsafe and this was causative of the [criminal conduct] that caused the plaintiff’s injury.”

156. [156]
     The apportionment in English v Rogers was 60% to the employer and 40% to the hotel. In explaining the basis for that, Mason P said, at [137]:

“I agree that the Hotel was in a better position to assess and respond to safety at the premises. But the employer had the ultimate control, in his authority to direct the plaintiff as to how he should go about his tasks. My observations in TNT Australia Pty Ltd v Christie [2003] NSWCA 47 with respect to an employer that operates a labour hire business are equally applicable to the present employer. At [67] I said:

‘In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the  normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.’”

157. [157]
     That reasoning would seem, with respect, to apply here also. Although Jomik exercised control over the system of work, in terms of directing the work the plaintiff was to do in accordance with the cleaning schedule; and although Jomik, as the operator of the restaurant, had direct control of security issues at the restaurant; it is apparent that Panther Cleaning retained the ultimate responsibility for the plaintiff, as its employee, and in particular was responsible for his training.  Had I formed a different view about the liability of the defendants, I would have found that an appropriate apportionment of responsibility is 60% to Panther Cleaning and 40% to Jomik.

Summary of damages assessed

158. [158]
     In summary, had I formed a different view of liability in this case, I would have assessed damages as follows:

Orders

159. [159]
     There will be judgment for the defendants. I will hear the parties as to costs and to that end propose to direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within 14 days.