Colwell v Top Cut Foods Pty Ltd [2018] QDC 119

The plaintiff sought damages for an assault which took place at work by a co-worker. The employer denied liability and the quantum of the damages claimed.

The assault took place on 20 January 2014, and the protagonist was Mr Parks. The was no dispute the assault took place, and that Mr Parks was the aggressor. Mr Parks subsequently pleaded guilty to the assault and was sentenced to six months imprisonment, 150 hours of community services and eighteen months probation.

The dispute centred on whether the employer ought to have foreseen the assault because there was knowledge by the employer of the risk of the assault and that it would materialise, but the employer failed to take reasonable precautions to avoid or minimise the risk.

In such circumstances, much turns on the prior behaviour of Mr Parks, the protagonist, and whether the employer knew or ought to have known of such behaviour. In this instance, it was alleged that Mr Parks had a prior criminal conviction for violence, and served 3.5 years imprisonment for it, and the employer knew about it. It was further alleged that Mr Park was an intimidating person who was at pains to present himself as such, and there were four occasions when the plaintiff and Mr Parks supervisor, Mr Hall was aware of circumstances constituting a warning to the employer of the risk of violence by Mr Parks. The last of these warnings was that after a verbal barrage, Mr Parks invited the plaintiff to the car park for a fight. At this point, Mr Hall intervened and ordered both to go to the office. On the way to the office, Mr Parks assaulted the plaintiff and had to be separated by co-workers, one of whom was also assaulted by Mr Parks. Hence, it was alleged the employer also failed to continue to separate the plaintiff and Mr Parks after the verbal exchange.

Somewhat usually in the trial, Mr Parks gave evidence, and the evidence was accepted as being truthful. The evidence largely corroborated the plaintiff’s claim that there had been a build-up of tension between the two and that each in their way had communicated this to Mr Hall, and that each wanted to be separated from each other. The plaintiff’s evidence on critical matters was accepted.

The evidence of Mr Hall was considered as not persuasive. His Honour found him to be combative and somewhat insolent, professing either not to have heard or not be able to recall conversations addressed directly to him.

Kent J accepted the defendant’s submission that knowledge simply that one employee was annoyed, distressed or in fear was a relevant finding, but not a determinative finding – Govier v The Uniting Church in Australia Property Trust.[59]

His Honour noted in this instance, that not only was this the case, but each party wanted to be separated from each other. His Honour made factual findings that the employer had the requisite knowledge including about Mr Parks criminal history and the warnings (foreseeability).

As to breach and preventative measures, his Honour found that the employer did not provide training to Mr Hall in personnel management or de-escalating conflicts between employees, that Mr Hall’s knowledge ought to have, but did not prompt him to assess the risk properly.

Turning to the hypothetical question of whether the assault would have been prevented, his Honour found:

“…(i) that it would have been feasible to move either Mr Colwell or Mr Parks to separate them at any point prior to 20 January 2014 without significant difficulty or expense for the defendant’s business. This could have been at the direction of Mr Hall, or if he referred the matter higher, a superior such as Mr Blatch or Ms Robinson;

(j) that had Mr Parks and Mr Colwell been separated by 17 January, the assault would likely not have occurred, because the interplay of the 17th and then consequently 20 January would, more likely than not, not have happened;

(k) further, that on 20 January when Mr Hall encountered Mr Parks and Mr Colwell arguing (the fourth warning), he should have separated them rather than sought to remove them together, and had they been separated, the assault would likely not have occurred.”

[76] This leads to the conclusion that on the information available to the employer via the state of knowledge of Mr Hall the supervisor, the assault was foreseeable; further, the separation of the two was a relatively simple and inexpensive step to avoid it. The failure to relocate either Mr Parks or the plaintiff, thereby separating them, by 17 January was therefore a breach of the duty of care which arose. The failure to immediately separate them on 20 January was a further breach, particularly in light of the evidence of Mr Hunter as to the appropriateness of this as a first step.

[77] The breaches of duty were causative of the injury to the plaintiff in that they materially increased the risk of injury and the risk materialised. Like Gittani Stone (supra), the circumstances, although not as extreme as that case, called for the employer to do more than it did (which in this case was nothing), to avoid the risk of violence. It is true that this is a question of degree, but I do not accept, having regard to the above findings, that the assault in this case can be characterised as an isolated incident occurring for the first time such as to absolve the employer of responsibility (compare the observations of Dunphy J in Antoniak v The Commonwealth,[66] referred to in Serra v Couran Cove Management Pty Ltd, supra, at [91]). Perhaps the other employees were, as they professed, surprised that the assault occurred; in the circumstances as I have found them to be, at least Mr Hall and probably Mr Blatch were not entitled to be so surprised.

Turning to quantum, the plaintiff suffered a 22% psychiatric impairment for Post-Traumatic Stress Disorder. The parties agreed the relevant ISV was 30 resulting in an award of $60,700.00.

As is common much turned on the loss of earning capacity of the plaintiff. His Honour broadly accepted the plaintiff’s submission for past economic loss and allowed $890 nett/week after WorkCover weekly benefits ceased and a 15% discount for contingencies ($153,850.85). Superannuation was allowed at 9.5% for the past. For the future loss of earning capacity, the plaintiff submitted a loss of $890/week over 23 years (now aged 43 years) and discounted by the 5% tables and 35% for contingencies plus a residual earning capacity ($417,098.50). The defendant submitted a full loss for two years and reducing up to five years, resulting in $200,000.00.

His Honour took a different approach and allowed a full loss for two years on the 5% tables ($88,466.00) and a further loss of about half the weekly amount, namely $450.00 over 20 years ($299,88000). However, the total of $388,346.00 was further discounted by 25% for contingencies, giving an award of $291.260.00.

Future superannuation was averaged at 11.3%.

Special damages and Fox v Wood followed.

The total award of $584,995.09 comprised:

  1. General damages at $ 60,700.00
  2. Past economic loss at $ 153,850.85
  3. Interest thereon $ 9,714.12
  4. Past superannuation at $ 14,615.83
  5. Past special damages at $ 31,282.29
  6. Future special damages at $ 14,080.00
  7. Fox v Wood at $ 947.00
  8. Future economic loss at $ 291,260.00
  9. Future superannuation at $ 32,912.00

Total $ 609,362.09

Less WorkCover refund of $ 24,367.00

David Cormack – Brisbane Barrister & Mediator




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