The plaintiff worked for a cleaning contractor (Church/ Panther Cleaning) who provided services to the franchisee (Jomik) of a MacDonald’s store at Harbour Town. The plaintiff’s claim was for personal injuries occasioned by an assault in the carpark adjacent the store. The plaintiff’s credibility was in the main not accepted and described by Her Honour that 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 left with the impression that the plaintiff was not a truthful witness.”
The infection of the plaintiff’s lack of credit coloured the trial and the findings. Her Honour Bowskill QC DCJ did accept an assault took place in the car park, but found the plaintiff’s presence in the car park was not in furtherance of his work duties; that the risk was very low; and the duty of care had not been breached by either defendant. Ultimately, the fault for the criminal act lay with the perpetrators and not the defendants.
Her Honour summarised the relevant principles when considering the respective duties of the defendants as follows:
Duty of care
 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. 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. The obligation to provide a safe system of work extends to security of the personal safety of the employee.
 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.
 As Gleeson CJ observed in Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61; (2000) 205 CLR 254 (Modbury) at , 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.
 Here, as in Modbury, the direct cause of the harm suffered by the plaintiff is the criminal conduct of third parties.
 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.
 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.
 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 -, 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…”
 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.
 This was the basis on which it was held by the New South Wales Court of Appeal, in English v Rogers  NSWCA 327; (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  HCA 1; (1986) 160 CLR 16 (Brodribb).
 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 ):
- (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;
- (b) this included instruction about what he was to do in order to keep the hotel premises secure from thieves;
- (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.
 Likewise, in Karatjas v Deakin University  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 -:
“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.”
 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.
 It follows that, in my view, Jomik did owe the plaintiff a duty of care, analogous to the duty owed by his employer.
 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”. That cannot be said to be the case here.
 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.
The plaintiff’s credit infected his accepted injuries, which was complicated by a prior significant work related claim for a shoulder injury in 2006.
Most notably, the plaintiff’s past loss of income was found to be about 26 weeks (6 months) and an allowance of $16,275 was made by Her Honour as compared to the WorkCover statutory benefits of $75,566.09!
As to the plaintiff’s future economic loss Her Honour found none  in reliance on the principle from Medlin v State Government Insurance Commission  HCA 5;(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.’”
As to apportionment, if it were required, Her Honour found the situation was not akin to the usual labour hire/host apportionment of 75%/25% or 70%/30% or similar analogy. Rather Her Honour stated:
 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  NSWCA 327; (2005) Aust Torts Reports 81-800 at, 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 :
“… 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.”
 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 :
“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  NSWCA 47with respect to an employer that operates a labour hire business are equally applicable to the present employer. At  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.’”
 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.
The plaintiff’s claim was dismissed.
David Cormack – Brisbane Barrister & Mediator