Issue: liability only – in an action by an employee against his employer for an injury from an attack from a co-employee on 13 July 2007. The nature of the attack was such as to result in a term of imprisonment of 4 years for the offender. The plaintiff contended that the employer should have reprimanded or counselled his attacker and ultimately dismissed his attacker before the attack, based on that person’s conduct over the period of employment.
Douglas J dismissed the claim by the plaintiff. In so doing he noted that cases of this nature can succeed where there has been a significant history of misbehaviour, not dealt with appropriately by an employer: Gittani Stone Pty Ltd v Pavkovic  NSWCA 355. However, the decision turned on factual findings of whether there was a breach of duty and whether the breach caused the injuries, having held there was a duty of care and that foreseeability was satisfied.
In so doing, Douglas J found the various examples of verbal disagreements, insults (including racial) and the allocation of certain work tasks did not amount to grounds for dismissal. His Honour considered that the reprimand for the racist note was sufficient. Likewise, Douglas J considered there were a number of competing reasons why the attack happened, including the ‘cracking of passwords’; he was a racist; he did not like the plaintiff; and he was irrational, were all equally likely and speculative.
Hence, His Honour found no breach of duty for failing to investigate, reprimand or discipline the attacker more than the employer did or to take other precautions such as different shifts. Douglas J noted often they worked different shifts in any event, but the attacker resided on the island and it is speculative whether this would have provided a solution to the attack.
The plaintiff also stumbled on causation. Whilst the 01/07/2010 amendments to the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) did not apply or the analogous Civil Liability Act provisions, reference was made to Adeels Palace Pty Ltd v Moubarak  HCA 48; (2009) 239 CLR 420 at  –  and comparatively the common law position as surmised in Lusk v Sapwell  QCA 59 at :
“Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.”
His Honour concluded:
 It does seem plausible to me that, if Mr Markan had been further disciplined or threatened with dismissal, he may well have attacked Mr Serra in any event. If he had been summarily dismissed there was probably less of a risk that the attack would have happened because of the steps that could have been taken to keep him away from the Resort by its security staff. But the occasion for summary dismissal did not, in my view, arise before 13 July.
 It is also significant that, even when Mr Markan was summarily dismissed on 13 July, he challenged the decision. Since he lived on the island there remained, therefore, a significant risk that he would have found a way to attack Mr Serra even if he had been summarily dismissed.
Brisbane Barrister – David Cormack