Bus driver assault – reasonably practicable means of obviating the risk

Miles v Brisbane City Council [2010] QDC 501

R Jones DCJ

Liability

[2] The plaintiff was employed by the defendant as a bus driver. On 28 June 2006, in the course of his employment, the plaintiff was working a shift which commenced at 11 am and was scheduled to finish at about 9 pm that evening. During his shift the plaintiff, at or about 7 pm, had stopped his bus at the Balmoral bus stop located in Byron Street, Balmoral, near its intersection with Apollo Road.

[3] Located at the end of Apollo Road, approximately 50 to 60 metres from the bus stop, were toilet facilities. These facilities were only accessible to employees of the defendant and were locked to prevent public use. It was not possible for any bus driver wishing to make use of these facilities to park any closer to them because of the manoeuvring capabilities of the defendant’s buses.

[4] A short time after parking his bus, the plaintiff made use of the facilities. On his return to his bus the plaintiff was attacked by an unknown assailant armed with a piece of timber. The motive for the attack was robbery. At the time it was the policy of the defendant that when bus drivers had to leave the bus, they were required to take with them the bus’s takings.

[5] As a consequence of the assault, the plaintiff suffered a number of personal injuries and was unable to continue his shift. He was taken from the scene by an ambulance after treatment on site. At the time of the assault, the plaintiff was aged 37.

[17] In describing the plaintiff’s vulnerability as I have, it is implicit that I accept the following evidence of the plaintiff:

(i) the toilet facilities were some 50 to 60 metres from where his bus was parked;[9]

(ii) consistent with the defendant’s policy, he was carrying his cash tray;[10]

(iii) the plaintiff was effectively ambushed, in that the assailant jumped from a bush between the bus stop and the toilet facilities;[11]

(iv) at the time of the assault the area was poorly lit;[12]

(v) at the time of the assault the nearest footpath to the bus stop was in many places overgrown with trees and/or shrubs;[13]

(vi) the plaintiff could not park his bus any closer to the toilet facilities;[14]

(vii) the area was one where antisocial behaviour took place including drug taking and vandalism.[15]

[18] I also find that the plaintiff acted reasonably in the way in which he attempted to defend himself. That the plaintiff acted in the way he did, including not simply handing the bus’ takings and his own wallet to the assailant, is not at all surprising given the suddenness of the attack.

[19] In the written submissions of Mr Keogh (counsel for the defendant) I was referred to the text “The Liability of Employers”[16] and, in particular, to the author’s identification of the elements of a successful action by an employee against an employer:

(i) that there was a risk of injury which was reasonably foreseeable (the foreseeability issue);

(ii) that there were reasonable practicable means of obviating such risk (the preventable issue);

(iii) that the plaintiff’s injury belonged to the class of injuries to which the risk exposed him (the causation issue);

(iv) that the defendant’s failure to eliminate the risk showed want of reasonable care for the plaintiff’s safety (for the reasonableness issue).

[20] In Vozza v Tooth & Co Ltd[17] Windeyer J observed that:

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task, without unduly impeding its accomplishment.”

[21] In Bankstown Foundry Pty Ltd v Braistina[18] Mason, Wilson and Dawson JJ, after considering the above passage from Vozza (supra) said:

“This passage has been repeated more than once in recent decisions of the court … . It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, ‘without unduly impeding its accomplishment’, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.” (citations deleted)

[22] On behalf of the plaintiff it was submitted that reasonably practicable means of addressing the risk of injury were available to the defendant. The provision of a lockable area on the bus would allow bus drivers to secure the cash tray within the bus when they had to leave it. Another means was for the defendant to adequately check and maintain all bus terminuses and washroom/toilet facilities. It was submitted on behalf of the plaintiff that if this had occurred, it would have resulted in the trimming of trees and bushes in Apollo Road in the vicinity of the facilities and the provision of suitable lighting and fencing and the construction of footpaths. According to the plaintiff, the first option would have prevented an assailant from being a target. The second option would have alerted Mr Miles to the presence of a potential attacker.

[23] The defendant argues that no reasonably practicable means of obviating the risk existed. The defendant makes this submission on the following bases:[19]

“(a) The cost of retrofitting all BCC buses to allow for the storage of cash boxes would have been considerable – this extends beyond simply placing a safe on a bus;

(b) The cost of installing additional lighting and removing all overhanging branches at all bus termini represents an unreasonable requirement of an employer, particularly in circumstances where they are in control of neither lighting nor overhanging trees on private property.”

[30] With respect, these submissions tend to miss the point. The defendant would not be required to eliminate all risks or to remove all overhanging trees at all locations nor would it be required to provide (or have installed) “adequate lighting” in every location where an employee might be required to work.

[31] Those facilities and works would only be required in those locations where it was reasonably necessary to provide a safe place of work. As identified above, it was foreseeable that an attempted robbery and or assault might occur in the subject environment. It is also clear that the consequences of such criminal actions could be very serious. The evidence is clearly to the effect that at the date of the incident, the environment surrounding the facilities was inadequately lit and in an overgrown state, thus providing an environment where a person in the position of the plaintiff at night, was at risk of being robbed. The overgrown nature of the area not only provided a place of hiding but made even more ineffective the inadequate lighting that existed at the time. The fact that some of this growth, indeed even that which provided the initial hiding place of the assailant, was located on private property provides no adequate excuse in my view.

[32] Following the assault on the plaintiff, a “Report of Workplace Incident and Investigation” was carried out by the defendant.[25] The remedial action identified was to “improve lighting between toilet and bus stop”. In response to that report the defendant carried out, relatively quickly thereafter, works including trimming trees and further lighting.[26] Contrary to the submissions made on behalf of the plaintiff, I do not accept that these additional works included fencing and a new footpath. The latter works may have been carried out at about the same time as the clearing and lighting works but the evidence is that they were not a part of the defendant’s response to the assault.[27] Even disregarding the construction of the fence and new footpath, the physical difference in the environment before and after the proposed works is significant.[28] There is no evidence that on the night of the assault it was anything other than a normal night. On the night of the assault, according to the plaintiff, the area was “very very dark”.[29] After the new lights were installed, it is now “lit up like the Queen Street Mall”.[30]

[33] There is some evidence that the works carried out cost in the order of $85,000. However, it is not clear whether those works included all of the work shown in Exhibit 1A or only the clearing and lighting.

[34] Evidence of what occurred after the accident cannot constitute an admission of negligence on the part of the defendant. However, it is relevant in considering what could have been reasonably done to prevent or reduce the risk of injury without interfering with the work requirement of the defendant.[31] The defendants almost immediate response to the assault, contrary to the submissions made on its behalf show that it did have a sufficient degree of control over clearing and the installation of lighting.

[37] The provision of adequate lighting and reduction of hiding places would have a two-way effect. First, it would provide a less attractive venue for any person inclined to commit robbery. Second, in the event that such a person was still inclined to commit a robbery, it provided an environment where the intended victim had much better prospects of observing the assailant earlier rather than later and thereby having the opportunity to take appropriate action.[36] As was observed by Bollen J in Fraser v State Transport Authority[37], it would be reasonable to presume that criminals would be less likely to commit offences in circumstances where the chances of success are materially reduced.

[38] The evidence does not establish that the cost of carrying out the works was unreasonable having regard to the risks involved.

[39] For the reasons given, I am satisfied that the evidence establishes that the defendant had failed to take measures or adopt means reasonably open to it to protect the plaintiff from the dangers associated with performing his work obligations without unduly impeding his accomplishment of those tasks.

[40] Accordingly, I find that the defendant is liable. The risk of injury was foreseeable. The defendant failed to put in place reasonable precautionary measures. The breach of its duty of care to the plaintiff was the cause of his injuries

Quantum

 Age  Injury  CLA  Uplift  Occupation  Past Loss  Future Loss  G v K
37(M) 5% permanent impairment  to his right shoulder &

Suffered significant and negative impacts on his emotion/mood.

$40,000.00

n/a Bus Driver $15,000.00

Nil evidence of weekly loss of overtime – global allowance.

$55,000.00

The emotional stability of the plaintiff was affected by this assault and, although there has been a significant recovery in respect of this injury there is evidence that I also accept, that some legacy of the emotional anguish suffered by the plaintiff that night still exists. This injury, in my view, adds another dimension to the risk of the plaintiff’s future employment in the open workforce.

Brisbane Barrister – David Cormack

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