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Employer liable for workplace assault

The recent Queensland District Court decision of Colwell v Top Cut Foods Pty Ltd [2018] QDC 119 is the latest of a number of decisions in which employers have been found liable in negligence for assaults in the workplace.

The plaintiff, Jamie Colwell, was employed by the defendant employer as a knife hand/butcher at its food processing premises. On 20 January 2014 the plaintiff was assaulted and significantly injured by a co-worker (Warren Parks). It was alleged the assault was caused by the negligence of the employer by its failure to act upon prior warnings and complaints made about Parks, which ought to have put the employer on notice an assault would occur if no action was taken.

Parks had a criminal history, including imprisonment in the United Kingdom for committing grievous bodily harm, and three counts of assault occasioning bodily harm. Upon commencement of employment with the employer, Parks’ criminal history was not investigated, however he did disclose he had been to prison. The supervisor of the two men conceded at trial he was aware Parks had been to jail, but was not concerned about it, “being inclined to give people a second chance.”

Colwell had complained to the supervisor in December 2013 that he was concerned about Parks’ behaviour, and said to the supervisor the situation “was like a ticking time bomb” (the first warning).

On the Tuesday prior to the assault, Parks told the supervisor he was “'building inside' in anger and frustration”, and he asked for either himself or Colwell to be moved away from the other. Parks told the supervisor he was close to “losing it” and something had to be done. No action was taken by the supervisor.

The conflict between Colwell and Parks escalated in an incident on Friday 17 January 2014 (the third warning). During Colwell’s shift, Parks was very aggressive and threatening violence to an unspecified person. Colwell was concerned that person was him, and approached Parks about whether it was. It is not clear whether the supervisor witnessed or was informed about this particular interaction.

The fourth warning occurred on Monday 20 January 2014. During Colwell’s shift, Parks approached him about the shift the previous Friday. Parks immediately became very agitated and shouted aggressively at Colwell, inviting him to the car park for a fight. The supervisor intervened and told them to both go to the office. It was on route to the office that the assault occurred.

The employer argued Colwell’s reports of violence and violent demeanour by Parks were overstated. The employer also argued there was no particular factual basis for it to be on notice that Parks had any particular violent propensity. The employer argued it was not aware of Parks’ criminal history upon commencement of his employment, and there was little demonstration of any true propensity for violence.

The trial judge found Colwell’s evidence should be accepted, and the employer had been put on notice that Parks was a danger to him. The trial judge found Colwell did raise concerns to the supervisor about Parks’ behaviour in December 2013 and that in the week prior to the assault Parks did report to the supervisor he was having difficulty with Colwell, and wished to be moved away from him. The findings also indicated that at all relevant times prior to the assault the supervisor was aware Parks had been in prison for violent offences, and that if Colwell and Parks had been separated prior to 20 January 2014, the assault would not have occurred. The failure to separate the two amounted to a breach of the employer’s duty of care.

This case serves as a timely reminder for employers to investigate and take appropriate preventative action should they receive a complaint by a worker about his or her concerns in relation to another worker, particularly in the context of their personal safety at the workplace.

This article was written by Rachel Willmott, Associate, and Cameron Seymour, Partner.

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."