Aaron Michael Brain had been dismissed from his employment with Inghams Enterprises Pty Ltd in early January 2013. On the night of 1 February 2013, Brain approached different female Asian workers as they left at the end of their shifts in the carpark of Inghams Enterprises’ Murrarie factory. The first three women he approached between about 11:00pm and 11:45pm found his behaviour to be strange and felt some apprehension, but managed to disengage and leave.
At 11:45pm Brain approached the Plaintiff Kim Yen Tat and gave her the false story about having a pregnant partner who needed help. She declined to accompany him, walked over to her car, and got into the driver’s seat. However, Brain stopped her from closing the car door. He then said “Can I give you a hug?” and tried to put his hand on her neck. She pushed his hand away and felt something stick into her hand. She then pushed him away, got out of the car screaming and ran away. Brain left the scene after workers came to her aid.
Immediately after this incident, Inghams Enterprises send a notice to all its employees warning them of the risks of being in or remaining in the carpark alone.
Brain, who was on parole for other violent offences at the time of the incident, had his parole suspended on 6 February 2013. He later pleaded guilty to assault occasioning bodily harm in respect of the incident and on 23 January 2014 was sentenced to two years imprisonment with a parole eligibility date after 6 months.
The Plaintiff suffered significant post-traumatic stress disorder injury from the incident and sued her employer for negligence.
“305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.”
“305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
(1) A decision that a breach of duty caused particular injury comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the injury (“factual causation” );
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (“scope of liability”).”
The primary judge noted that it did not matter that the precise manner in which the plaintiff received her injuries was not foreseeable, and that he was required to bring a prospective, rather than a hindsight analysis to bear on the question of foreseeability. He also acknowledged that the essence of the Inghams Enterprises’ argument was that the injury was not foreseeable due to the practical absence of any prior incidence of violence by a third party to an employee.
However, primary judge relied on expert evidence from engineers experienced in risk management and security assessments to the effect that the safety of workers from violence and assault should be managed proactively, and held that Inghams Enterprises should have engaged in an assessment of the risks of third party violence to its employees as well as how it should respond to those risks. According to the primary judge, Inghams Enterprises could and should have the installed duress alarms at regular intervals in the carpark and warned its employees in a similar way the way it did after the incident. Inghams Enterprises’ reliance on factually distinguishable cases was rejected because of evidence at trial that many female workers left the workplace late at night five times a week through a large, open car park in an industrial area.
As a result, the primary judge found that Inghams Enterprises had been negligent and had to pay damages to the plaintiff. Inghams Enterprises appealed against this judgment.
On appeal, Inghams Enterprises argued that the primary judge had erred in finding that Inghams Enterprises should have taken action to prevent the incident which caused the injury. It argued that the primary judge’s reference to the events after the incident were contrary to s305C(c) of the Workers’ Compensation and Rehabilitation Act because that approach treated the instruction which had been given to the staff as an admission of liability. Inghams Enterprises also contended that the findings erroneously involved the application of hindsight, because they were inherently specific to the unusual facts of the case, which did not involve a single assault, but a protracted course of abnormal conduct prior to an assault. The Court of Appeal held that these arguments did not take into account the abovementioned expert evidence led at trial.
Inghams Enterprises also submitted that the plaintiff had failed to prove that the installation of duress alarms and training of and warnings to staff would have prevented the incident, and therefore causation had not been established. It was argued that the primary judge’s conclusions on causation rested on the propositions that had duress alarms proper training and instructions been provided, at least one of the other workers involved in the earlier encounters with Brain would have been sufficiently concerned about him that they would have called security, the security guard receiving the report would have left the security office and found Brain, Brain would have been required to leave, and Brain in turn would have complied with that direction. Justice Bond held that it was not open on the evidence for the primary judge to reach such conclusions.
Furthermore, as Gotterson JA noted, the trial judge did not make findings that a failure to install duress alarms or upgrade of the CCTV monitoring was the cause of the respondent’s injuries.
Because the judge erred in finding that causation had been established, the appeal was allowed and the decision of the primary judge was set aside, with costs awarded to Inghams Enterprises.
This case is a good reminder that even if an employer has breached their duty of care, it is still necessary for a plaintiff to prove that the breach caused their loss. In this case, there was insufficient evidence to establish that training and warnings would probably have prevented Brain from approaching the Plaintiff in the carpark. Because causation at law was not proven at trial, the result was that the claim against Ingham Enterprises had to fail.