Love v Lindsay Brothers Management Pty Ltd [2013] QDC 174

Love v Lindsay Brothers Management Pty Ltd [2013] QDC 174

 

Kingham DCJ:

 

[19] Whether there has been a breach of the employer’s duty will depend on the steps taken to protect the employee’s welfare, having regard to the nature of the risk, the probability of the risk occurring and the likely consequences if it does occur. The court must determine what a reasonable employer would do by way of response to the risk.

 

[20] Mr Love’s case is negligence or breach of contract by omission: that Lindsay Brothers failed to take reasonable action to prevent the harm. This requires the court to engage in a hypothetical inquiry about whether the incident and, therefore, the injury, could have been avoided by Lindsay Brothers taking reasonable steps to prevent it. The frame of reference for the inquiry is set by what the duty of care required and the facts and circumstances from which the likelihood of preventing the harm can be assessed.

 

[22] In Hudson v Ridge Manufacturing Company Ltd, Streatfield J discussed the standard to be applied in the context of workplace risks arising from the conduct of workers themselves:

“… upon principle it seems to me that if, in fact, a fellow workman is not merely incompetent but, by his habitual conduct, is likely to prove a source of danger to his fellow employees, a duty lies fairly and squarely on the employers to remove the danger.”

 

[23] Lindsay Brothers might have removed, or at least reduced, any danger Mr Carroll presented by excluding him from the depot. The court must, however, have regard to the fact that attendance at the depot on a regular basis appears to have been one of Mr Carroll’s work duties. The consequence to Mr Carroll of being excluded was not explored in evidence. On the limited evidence before the court, I am not persuaded that this was reasonably required.

 

[24] In Antoniak v The Commonwealth, Dunphy J explored what might be required by way of response on the first occasion that a potential danger is manifest:

“If… a worker, for the first time, indicates himself as possibly as a potential danger, an employer should not, except in extraordinary circumstances, be held responsible for subsequent injury to a fellow employee if he did not go to the ultimate remedy immediately upon the first report.”

 

[27] In any case, as it was, Mr Carroll was an unauthorised entrant that night. Lindsay Brothers implemented a security system that was intended to prevent unauthorised persons from entering the depot. This system consisted, primarily, of a large security gate, monitored by a CCTV recording system. When persons approached the gate, they had to radio or call an employee in the office who could open the gate remotely. The vehicle would then enter through the gate. It took some time for the gate to close and this did present some risk of unauthorised entry into the depot. That risk was realised when Mr Carroll entered without authority, “shadowing” a truck that was approved to enter.

 

[28] However, there is little more that Lindsay Brothers could have done, practicably, to prevent unauthorised entry. Dr Tony Zalewski, an expert in security systems and workplace safety, was engaged by Mr Love to provide a report and gave evidence on the question. Dr Zalewski stated that:

“… in operations where trucks are entering and leaving there is an inevitable delay hence the potential for shadowing can occur which therefore requires introduction of an immediate intervention strategy on unauthorised access…”. (emphasis added)

[29] That is precisely what happened on the night. Within seconds of Mr Carroll’s car entering, two employees approached his vehicle. The evidence does not allow the court to conclude what role those employees were fulfilling. However, one of them was Mr Pugh, the employee through whom Lindsay Brothers is alleged to have been put on notice of a potential incident.

 

[30] Dr Zalewski raised the possibility that Lindsay Brothers could have engaged a security guard. Ultimately, he accepted the cost of this was likely to be more than minimal. In any case, I am not convinced the presence of a security guard would have prevented the incident. It certainly would not have prevented unauthorised entry by shadowing.

 

[32] I am not satisfied on the evidence that Mr Carroll threatened harm to Mr Love before the incident. There is no evidence that he had ever conducted himself in a way that indicated he presented a risk of violent or unpredictable behaviour towards others. In those circumstances, it was not necessary for Lindsay Brothers to exclude him from the depot. Even accepting that it was foreseeable that Mr Carroll presented some risk of aggressively confronting Mr Love, it was improbable that he would assault Mr Love on sight, in the presence of witnesses, and without warning. Mr Carroll entered the depot by car, without authority, exploiting an inevitable delay in the gate closing after an authorised vehicle had entered. Despite the presence of two other employees who approached his vehicle, Mr Carroll assaulted Mr Love within seconds of getting out of the car. Mr Love has not established what measures Lindsay Brothers could reasonably be expected to have taken that would have prevented that assault. Given those findings, Lindsay Brothers is not liable to Mr Love for his injuries.

 

 

David Cormack – Brisbane Barrister.

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