Employer not liable for co-worker assault

Serra v Couran Cove Management P/L [2012] QSC 130
Douglas J
30 May 2012

Background

Mr Serra, the worker, was an electrical mechanic employed to work at Couran Cove Resort. On 13 July 2007 Mr Serra was assaulted by a co-worker, Mr Markan.  Mr Serra suffered injuries from the assault.

Mr Serra's claim was that, in the context of a number of issues between Mr Serra and Mr Markan prior to the assault, the employer should have dismissed Mr Markan from its employment, or at least further disciplined him, prior to 13 July 2007 so that the assault and Mr Serra's injuries would not have occurred.

The Facts

This case was determined on its facts.

It was accepted that an employer may be liable for the misdeeds of an employee where the employer fails to take proper steps to prevent those misdeeds especially, for example, where there has been a significant history of misbehaviour by an employee including an assault not dealt with properly by an employer.

The Court analysed the evidence of all the prior issues between Mr Serra and Mr Markan to determine whether the employer should have further disciplined Mr Marken or terminated his employment prior to the assault on 13 July 2007.

The Court made the following findings in relation to the prior issues between Mr Serra and Mr Marken:

• Mr Markan may have had a difficult personality;
• there were communication problems between Mr Serra and Mr Markan;
• there was a verbal confrontation between Mr Serra and Mr Markan that had some potential for violence on an occasion prior to the assault; and
• Mr Marken had written a note about Mr Serra for which the employer reprimanded Mr Marken for contravening the employer's workplace harassment policy.  Mr Marken appeared to accept the reprimand.

The conclusion by the Court was that although an assault by Mr Markan on Mr Serra may have been foreseeable, the employer did not breach its duty of care to Mr Serra by failing to investigate, reprimand or discipline Mr Markan more than it had done already.

The court concluded that the need for summary dismissal of Mr Markan's employment did not arise prior to the assault on 13 July 2007.

The other important consideration by the Court was that even if Mr Markan had been further disciplined  he may have assaulted Mr Serra in any event, noting that the conduct of criminal assailants in not necessarily dictated by reason.

Judgment

The Court was not satisfied the employer had breached its duty of care to Mr Serra or that if the employer had dismissed Mr Markan, or counselled him further, that the assault would have been avoided.

Mr Serra's claim was dismissed and judgment entered for the employer.\

*Published 21 June, 2012.