WCRA: Domino’s not liable for assaulted staff’s failure of common sense

Adlington v Domino’s Pizza Enterprises Limited [2016] QDC 84 

Sheridan DCJ

The plaintiff was employed as a delivery driver by the defendant, Domino’s Pizza. As part of the plaintiff’s duties, he was required to close the store and take the rubbish from the store to industrial bins via his car. He was accompanied by the assistant manager. After an initial confrontation between the plaintiff and a group of youths, the plaintiff drove to the back of the store to collect the rubbish. The same group of youths then assaulted him at the back of the store.

The plaintiff brought proceedings for negligence against Domino’s. It was not in dispute that Domino’s owed the plaintiff a duty of care. Further, it was not in dispute that Domino’s owed the plaintiff a duty of care extended to criminal activities by third parties. Therefore, the issues for the court were:

  1. Whether the risk of assault was reasonably foreseeable;
  2. Whether Domino’s breached its duty by failing to take reasonable steps to protect the plaintiff from the assault; and
  3. Whether the breach of Domino’s of its duty to the plaintiff caused the plaintiff’s injuries

Foreseeability

Sheridan DCJ referred to evidence showing that there had been a number of incidents between 2007 and 2012. Further, Her Honour referred to the Domino’s training manual which also stated that there may be security issues while working at Domino’s. Taken together, Sheridan DCJ found that an assault on an employee was clearly foreseeable.

Breach

The final submissions from counsel on behalf of the plaintiff relevantly included the following allegations:

  1. As a servant of Domino’s, failure by the assistant manager to take action after the initial confrontation;
  2. Failure by Domino’s to adequately train its staff in the event of such incidents; and
  3. Failure by Domino’s to provide any form of security by way of engaging security staff either on site or available on call

Failure by assistant manager

It was submitted that the assistant manager should have instructed the plaintiff to retreat to the store after the initial confrontation or should have called security (were it available). However, Sheridan DCJ found that it was unnecessary to undertake either action as the youths had already decamped. Her Honour found that the assistant manager’s actions were entirely appropriate.

Failure to train staff

It was alleged that Domino’s failed to train its staff in the event of an assault. Sheridan SCJ said in this regard:

[84] There is indeed much to be said for the proposition that there was no real reason for such instructions to be given, and as a matter of common sense it was best not to engage with people who are behaving in a manner in which this group had behaved. In fact, Mr Lynch in giving evidence in relation to training as to how to respond when someone demands something of you referred to it being ‘common knowledge for retail’.

[85] Nevertheless, given the earlier reported incidents, there is merit in the argument that Domino’s should have, through the training manual or other training, reinforced the common sense approach by direct instruction.

Failure by Domino’s to provide security

Sheridan DCJ found that providing security would not have been required where there were already mechanisms regarding staff safety in place. Her Honour said:

[99] In circumstances where there had been no reported prior incident at close time, the reported prior incidents had not resulted in serious injury, the close procedure already required the presence of two staff members and there was an additional cost to the store of providing a security person, I am not satisfied it was unreasonable for Domino’s not to have engaged a security service at close time.

Causation

Sheridan DCJ did not accept that any failure by Domino’s of its duty of care to the plaintiff caused the plaintiff’s injuries. His Honour said:

[106] … there is little doubt that had Mr Adlington not yelled at and engaged in an argument with the youths, the youths would not have returned to his car and the assault would not have occurred.

[110] … Mr Adlington was clearly annoyed by the action of the youths in stealing his pizza, just as the evidence of Mr Lark made it clear that he was annoyed at the group of youths damaging his car. Upon seeing the same group of youths across the street when he arrived around the back of the store, Mr Adlington could not resist yelling at them. No amount of training would be likely to have prevented his spontaneous reaction.

[113] I do not accept, as submitted by Ms Sorbello, as counsel for Mr Adlington, that here the youths were so concerned about the presence of authority that the presence of a security person around the back would have resulted in different behaviour. At best, their expressed concern was about the presence of police, not security personnel.

His Honour dismissed the plaintiff’s claim and entered judgment for the defendant. Had he accepted the plaintiff’s account, damages would have been assessed as follows:

 

Head of damage Amount
General damages $10,400.00
Special damages (as agreed) $9,681.21
Interest on ‘out-of-pocket’ expenses of $400 (as agreed) $19.72
Fox v Wood (as agreed) $2,567.00
Past economic loss $33,705.08
Interest on past economic loss $1,661.27
Past loss of superannuation $3,117.72
Gross Assessment $61,152.00
Less agreed refund to WorkCover Queensland $18,034.79
Net Assessment $43,117.21

 

David Cormack – Brisbane Barrister & Mediator

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