Gittani Stone Pty Ltd v Pavkovic - [2007] NSWCA 355

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Gittani Stone Pty. Limited v. Pavkovic [2007] NSWCA 355

HEARING DATE(S): 16 November 2007

JUDGMENT DATE:
13 December 2007

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 70; McColl JA at 117

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORTS - NEGLIGENCE - EMPLOYMENT - Scope of duty of care - Causation - Employee injured by being shot by another employee after he left place of employment - Employee had been injured over 18 months earlier in an assault by the other employee at the place of employment - Other occasions of unreasonable conduct by the other employee - Whether employer in breach of duty of care in not dismissing the other employee, or otherwise - Whether injury caused by any such breach, and not too remote.

CASES CITED: Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35
Antoniak v The Commonwealth (1962) 4 FLR 454
Ashrafi Persian Trading Company Pty Limited v Ashrafinia (2002) Aust Torts Reports 81-636
AWU-FIME Amalgamated Union v Queensland Alumina Ltd (1995) 62 IR 385
Bendix Mintex Pty. Limited v. Barnes (1997) 42 NSWLR 307
Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Caparo Industries Plc v Dickman [1990] 2 AC 605
Chapman v Hearse (1961) 106 CLR 112
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Chappel v. Hart (1998) 195 CLR 232
Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070
Coca-Cola Amatil (NSW) Pty. Limited v. Pareezer [2006] NSWCA 45
Czatyrko v. Edith Cowan University [2005] HCA 14, 79 ALJR 839
Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370
Dorset Yacht Company Limited v Home Office [1970] AC 1004
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
English v. Rogers [2005] NSWCA 327
Flounders v. Millar [2007] NSWCA 238
Fox v. Percy (2003) 214 CLR 118
Fraser v State Transit Authority (1985) 39 SASR 57
Gordon v. Ross [2006] NSWCA 157
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42
Hughes v. Lord Advocate [1963] AC 837
in Mahony v. J. Kruschich (Demolitions) Pty. Limited (1985) 156 CLR 522
Liftronic Pty Limited v Unver (2001) 75 ALJR 867
Macquarie Area Health Service v. Egan [2002] NSWCA 26
March v. E. & M.H. Stramere Pty. Limited (1991) 171 CLR 506
Mifsud v. Campbell (1991) 21 NSWLR 725
Modbury Triangle Shopping Centre Pty. Limited v. Anzil [2000] HCA 61, 205 CLR 254
Naxakis v. Western General Hospital [1999] HCA 22, 197 CLR 269
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Overseas Tank Ship (UK) Limited v. Morts Dock & Engineering Co. Limited (The Wagon Mound No.1) [1961] AC 388
Perl Limited v Camden London Borough Council [1984] QB 342
Public Transport Corporation v Sartori [1997] 1 VR 168
Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431 Graham Barclay Oysters Pty. Limited v. Ryan [2002] HCA 54, 211 CLR 540
Seltsam Pty. Limited v. McGuiness [2000] NSWCA 29, 49 NSWLR 262
Sheather v. Country Energy [2007] NSWCA 179
Smith v Littlewoods Organisation Limited [1987] 1 AC 241
Tame v New South Wales (2002) 211 CLR 317
TC v. State of New South Wales [2001] NSWCA 380
Wyong Shire Council v. Shirt (1980) 146 CLR 40

PARTIES: Gittani Stone Pty. Limited - appellant
Miroslav Pavkovic - respondent

FILE NUMBER(S): CA 40042/07

COUNSEL: Mr. C. Bridge SC with Mr. M. Fordham for appellant
Mr. D.E. Baran for respondent

SOLICITORS: Hicksons, Sydney for appellant
Petrovich Accident Lawyers, Liverpool for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1760/05

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 22 December 2006

CA 49832/06
DC 1760/05

HODGSON JA
IPP JA
MCCOLL JA
Thursday 13 December 2007

GITTANI STONE PTY LIMITED v PAVKOVIC

Headnote

FACTS
The respondent worked for the appellant company (the employer) as a stonemason. Mr. Lee was his colleague. The company was owned by Jason and George Gittani, and Mr. Goria was the foreman.

From the time of his employment up until December 2001, Mr. Lee was involved in a number of altercations with various work colleagues. In April or May 2000, Mr. Lee had an altercation with the respondent in which Mr. Lee committed an unprovoked assault on the respondent, punching him in the head. Mr. Lee also picked up a heavy bar with apparent intention of striking the respondent, but others intervened. On finding out about the events, George Gittani told Mr. Lee and the respondent that if they did something similar again they would have to leave the factory, and discouraged the respondent’s suggestion of involving the police. There was no meaningful disciplinary action taken.

On 14 December 2001, Mr. Lee and the respondent were again involved in an altercation. Mr. Lee had screamed at and verbally taunted the respondent for two consecutive days prior to that day. When the respondent reproached Mr. Lee for his conduct, Mr. Lee became very angry, swore at the respondent and began aggressively shaking his clenched his fists at him. Mr. Goria told the respondent that Mr. Lee was a sick man and counselled him to stay away from Mr. Lee. Jason Gittani then asked them to shake hands. Mr. Lee, clearly still angry, left the workplace without permission. A fellow worker heard Mr. Lee saying “I will be waiting or I’ll be outside”.

After work, the respondent went to his car, which was parked on the street outside the factory, to change his boots. At that point, Mr. Lee drove up and shot at the respondent three times and seriously injured him.

The respondent claimed against the appellant in negligence for breaching its duty as an employer and succeeded. The employer appealed.

HELD (dismissing the appeal)
(per Hodgson JA)
(1) Questions on the scope of a recognised duty are better considered under the element of breach of duty: Sheather v Country Energy [2007] NSWCA 179, followed. Here, breach was established on both the April or May 2000 and the December 2001 occasions, because each situation called for the employer to do more than it did. The first situation required the employer either to dismiss Mr. Lee or at least to convey to him in the strongest terms that further misbehaviour would lead to his dismissal and to monitor him closely; and the second situation called on the employer to make a full inquiry and alert the respondent to the threat made by Mr. Lee.

(2) It is sufficient to establish causation that a defendant’s breaches of duty materially increased the risk of injury to the plaintiff, and that risk materialised: Flounders v Millar [2007] NSWCA 238. In circumstances where it is difficult for a court to make detailed findings as to what would have happened if none of a number of breaches had been committed, it may take a robust and common-sense approach: March v E & M.H. Stramare Pty. Limited (1991) 171 CLR 506 and Bendix Mintex Pty. Limited v Barnes (1997) 42 NSWLR 307, followed. Here, on the balance of probabilities, the shooting would probably not have occurred had the employer not breached its duty.

(3) Foreseeability in relation to remoteness is required in relation to the kind of damage that resulted, not the precise circumstances of that damage: Overseas Tank Ship (UK) Limited v Morts Dock & Engineering Co. Limited (the Wagon Mound No. 1) [1961] AC 388 and Hughes v Lord Advocate [1963] AC 837, followed. Injury to the respondent here due to an assault by Mr. Lee, as a result of friction between them as workers, was a kind of damage that was foreseeable.

(per Ipp JA)
4) The primary judge was correct to hold the appellant was negligent in failing to dismiss Mr. Lee, and the injury to the respondent was caused thereby and was not too remote.

(per McColl JA)
(5) The non-delegable duty owed by employers to employees may extend to protecting them from the criminal behaviour of third parties, including fellow employees: Modbury Triangle Shopping Centre Pty. Ltd. V ANZIL [2000] 205 CLR 254, followed and Antoniak v The Commonwealth (1962) 4 FLR 454, adopted.

ORDERS

**********

CA 40042/07
DC 1760/05

HODGSON JA
IPP JA
McCOLL JA

Thursday 13 December 2007

GITTANI STONE PTY. LIMITED V. PAVKOVIC

Judgment

1 HODGSON JA: On 22 December 2006, in proceedings for damages brought by the respondent (the worker) against the appellant (the employer), McLoughlin DCJ gave a verdict and judgment for the worker in the sum of $861,197.77, and ordered the employer to pay the worker’s costs.

2 The employer appeals from those orders.

CIRCUMSTANCES

3 In the proceedings, the worker sought damages for injuries sustained by him on 14 December 2001 when, after leaving the premises where he was employed by the employer as a stonemason, he was shot three times by a Mr. Lee (who is also, and probably more correctly, referred to as Mr. Li), who was also employed by the employer as a stonemason.

4 The worker was born in 1967. He was of Serbian ancestry, and had been displaced from Croatia by the conflict there in the early 1990s. He arrived in Australia in October 1998, and he commenced employment with the employer in February 1999.

5 Mr. Lee commenced employment with the employer just before Christmas 1999.

6 The factory had about ten people working in it. The management at the factory consisted of a foreman Raad Goria and one of the owners of the company, Jason Gittani. George Gittani (the brother of Jason and the other owner of the company) was present from time to time.

7 Between the time Mr. Lee commenced employment and the time of the worker’s injury, there were a number of incidents at the workplace involving Mr. Lee; and it was the employer’s response or lack of response to these incidents that was alleged to be the negligence that caused the worker’s injury. The primary judge accepted the worker’s evidence concerning these incidents, and since nine of the twelve grounds of appeal do not challenge this, it is convenient here to set out the primary judge’s account of the evidence, concerning these incidents, that he did accept:

The incident of the assault on the plaintiff in April/May 2000 when the plaintiff gave evidence of Lee losing his temper starting to yell at the plaintiff when he declined a request at work to change workbenches. The plaintiff's evidence was that Lee said, "Fuck off Mick what do you want?" When the plaintiff told Lee not to swear he was unexpectedly punched in the head by Lee using a clenched fist. Such blow was of sufficient force to cause the plaintiff's left eye to become closed and swollen and remain that way for about ten days. The plaintiff's evidence was that during the conflict the plaintiff observed Lee's face change and the plaintiff also described Lee picking up a heavy metal G-clamp after punching him and was apparently shaping up to strike the plaintiff again when the intervention of two co-workers prevented this occurring with the co-workers holding Lee to restrain him.

Evidence given by Mr Sayid Amid confirmed that Lee was shaping up to strike the plaintiff a second time when he intervened despite the fact the plaintiff was then holding his face. Mr Sayid recalled that Lee was holding a large piece of timber rather than a G-clamp.

The manager, George Gittani, and the supervisor, Rard, were present a short time thereafter with George Gittani speaking to the plaintiff and Lee immediately and George Gittani being told about the punch and the then conduct of Lee.

Mr Gittani told the plaintiff and Lee to forget about the circumstances and discouraged the plaintiff's suggestion of involving the police. There was no meaningful disciplinary action taken by the defendant against Lee and the supervisor did not speak to either Lee nor the plaintiff, attempt to counsel him or take any actions or steps in any way.

Mr de Meyrick also relied upon an incident between Lee and a worker, Chandra, that happened in late '99 or early 2000 when the plaintiff gave evidence of Lee screaming and yelling at Chandra so that the whole factory could hear with Lee's face changing in apparent anger and this incident was confirmed by the evidence given by Mr Chandra. Reliance was also placed on the Costa incident which occurred in February or March 2000 when the plaintiff gave evidence of Lee taking Costa's boots. Costa asked for them to be returned and the plaintiff hearing Lee say, "Fuck off from here I don't want to change this, I don't want to give you your boots back to you. If you want to fight I will give you a fight." They were standing nose to nose when these words were exchanged and the plaintiff observed Lee making his hands into a fist ready to strike and that Lee's face changed in appearance. This happened in the presence of the supervisor, Rard Guria, he positioned himself between the two workers to prevent escalation of the incident.

Costa Alexia gave evidence confirming the incident and of he having described the incident to George Gittani describing Lee's inappropriate loss of temper, aggressive behaviour, swearing and apparent desire to engage in physical conflict.

Evidence was given by .the plaintiff of Lee losing his temper when being spoken to about his performance by the supervisor, Rard Guria. The plaintiff described Lee hitting a toolbox, throwing tools and swearing, hearing Lee say, "Fuck off, Rard," in a very loud tone of voice.

Again, the plaintiff described Lee's face changing during the episode of loss of temper and later Lee made comments such as, "I'll show him." That incident occurred after the assault by Lee upon the plaintiff but before the shooting. Sulia Asay Ahmid also gave evidence of recording Lee losing his temper with Rard.

There was another incident where Lee was angry with a young New Zealand co-worker and evidence was given by Mr Faniano Osis of regular losses of temper by Lee accompanied by noticeable facial expressions, incidents of rage and anger, often swearing, saying "Fuck and shit" and throwing tools as happening approximately weekly.

8 The incidents involving Mr. Chandra and Mr. Alexia occurred before the initial assault on the worker. The incident involving the New Zealand co-worker occurred later, in 2001. Other observations of angry behaviour occurred in the period between the initial assault on the worker and the shooting.

9 The evidence accepted by the primary judge as to the events leading to the actual shooting of the worker were set out by the primary judge as follows:

On 12 December the plaintiff describes Lee as screaming at him in the lunchroom with the verbal taunts. Lee doing the same on the next day, 13 December and on 14 December there was a repeat of the screaming conduct by Lee. The plaintiff gave evidence describing Lee screaming for the third day running, in the presence of a number of co-workers, and Lee being reproached by the plaintiff for this conduct. Lee then getting very angry telling the plaintiff to fuck off, shaking up to him in an aggressive manner with clenched fists with Lee's face totally changing with apparent rage. This evidence was in part supported by the evidence of the supervisor, Rard Guria, who described Lee as very upset, very angry, ready to fight.

That the plaintiff and Lee went outside the lunchroom, they were brought in by the supervisor, Rard Guria, took the plaintiff aside with the plaintiff recalling Guria saying, "Just try to avoid him he's a sick man don't get into any arguments."

A short time later, Jason Gittani, one of the directors of the defendant made Lee and the plaintiff shake hands. The plaintiff described Lee as clearly still being angry. This was confirmed by Jason Gittani in his statement to the police that Lee was still angry at the time of shaking hands. Lee then left, decamped the workplace without permission. This being described in the evidence by the plaintiff and by Rard Guria.

Mr Cruz (?) gave evidence that he and another co- worker had pulled the plaintiff and Lee apart on this day in the lunchroom, that the same had occurred when the conflict had moved outside. Mr Cruz heard Lee saying, "I'm going home and I will be waiting or I'll be outside," in a threatening way. Mr Osis (?) also heard some threats and words to the effect from Lee that he will be back. There was no investigation or nobody spoke to Mr Cruz or Mr Osis as to what they had heard on that date.

DECISION OF PRIMARY JUDGE

10 The worker’s contention was set out as follows by the primary judge:

The negligence which is alleged by the plaintiff against the defendant is failing to prescribe and maintain a safe system of work, ignoring continuous threats insults and verbal abuse and acts of violence perpetrated by Mr Lee against the plaintiff and other co-workers, failing to report the assault of April/May 2000 to the police, failing to conduct a safety audit regarding the workplace and conduct of Mr Lee, failing to take any disciplinary action against Mr Lee, failing to counsel Mr Lee, failing to provide warnings to Mr Lee if there were any further outbursts he would be terminated, failing to properly supervise the workers in the workplace, including the plaintiff, to ensure that persons such as Mr Lee did not engage in conduct that was intimidating frightening or otherwise violent; failure to undertake a security assessment, failing to have in place a system of instant reports and notification procedures to ensure that, in the event of violent outbursts by co-workers, they could be reported and the defendant would act, failing to do anything in order to ensure that Mr Lee ceased his violent behaviour towards the plaintiff and other co-workers, failed to prescribe and enforce an anti-harassment policy in the workplace, failed to undertake a proper debriefing after the first assault on the plaintiff and he has failed to provide proper support to Mr Lee regarding any psychological problems he may have been having, and to ensure he was fit to return to work from the point of view of his psychological health.

11 The employer relied on evidence from the foreman Mr. Goria, set out as follows by the primary judge:

Mr Bridge SC in his submission, relied upon the evidence of Mr Guria saying that Mr Guria has made reference to Mr Lee getting upset when he, Guria, was a foreman expressed dissatisfaction with his work, and he recalled a complaint about Mr Lee using Costa's gumboots but didn't recall a fight and Mr Guria didn't recall any incident involving Chandra. Mr Guria dealt with the action he took in response to the incident in April or May involving the plaintiff and Mr Lee and not taking any disciplinary action saying everything returned as usual the following the day. That after the incident on 14 December Lee and the plaintiff at the instigation of Jason Gittani shook hands, spoke to each other and it looked all was normal, Lee took his bag and went home. There was a meeting of staff with the bosses including Guria, Jason and George Gittani. If anyone had a problem they went to the boss and spoke individually although there seemed to be no discussions at any of these meetings as to the ongoing conduct by Mr Lee.

12 To the extent that there were conflicts in the evidence, they were resolved by the primary judge as follows:

I accept the plaintiff's evidence as to Mr Lee's conduct towards him and others. There is some variations in the evidence between what the plaintiff says and the other witnesses, however, I am of the view that such differences are not of great moment and I accept generally. the evidence of the plaintiff. Mr Guria, for example, who was the foreman, and to some degree responsible for the workplace and the workplace safety, I accept that he has consciously downplayed in his evidence and his understanding of Mr Lee's misconduct. I accept that Mr Lee was violently aggressive and frequently threatened violence and conducted himself in a manner that conveyed hostility to those in the workplace. I accept in those circumstances that there was a duty on the defendant to counsel, warn and discipline Lee because of this conduct.

13 The primary judge referred to cases concerning the circumstances in which an employer’s duty to an employee may extend to protecting the employee from the criminal conduct of third parties: Modbury Triangle Shopping Centre Pty. Limited v. Anzil [2000] HCA 61, 205 CLR 254; English v. Rogers [2005] NSWCA 327; Coca-Cola Amatil (NSW) Pty. Limited v. Pareezer [2006] NSWCA 45; and Macquarie Area Health Service v. Egan [2002] NSWCA 26. He also referred to the general statement as to an employer’s duty of care in Czatyrko v. Edith Cowan University [2005] HCA 14, 79 ALJR 839.

14 The primary judge noted the employer’s reliance on the test stated in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47, and on Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431 and Graham Barclay Oysters Pty. Limited v. Ryan [2002] HCA 54, 211 CLR 540.

15 The primary judge found the employer in breach of its duty of care:

AWU FIME Amalgamated Union v Quinns and Alumina Ltd

There is no suggestion in this assault that there was any provocation or self defence relied upon by Lee. Lee had only been in this employ a very short period of time at the time of the commission of the assault.

When regard is had to the defendant's duty of care to the other workers including the plaintiff, there is much in the submission which is made by Mr de Meyrick. The plaintiff suffered a reasonably severe injury in that he had a black eye for some ten days. The assault was violent and there were no mitigating circumstances.

To not dismiss Lee in those circumstances I accept left the plaintiff and other workers exposed to Lee's unprovoked violence and unpredictable outbursts of violence or anger.

I am also of the view the defendant in not dismissing Lee, that the police should have been notified of this assault to indicate to Lee the seriousness with which the defendant viewed such an assault, and to indicate to Lee what the defendant expected in relation to the workplace and his attitude to other workers. Lee should have been warned that any further acts of violence, aggression or the threats of violence would bring about instant dismissal and further referral to the police.

I also accept that Lee's behaviour thereafter should have been closely monitored and he counselled on a number of occasions. I also accept that it would have been proper workplace practice to properly investigate the assault and all other acts of violence by Lee. After that warning that should have been given to Lee I accept that upon him showing further violence, he should have been dismissed instantly.

I also accept that the altercation between Lee and the plaintiff on the day of the shooting should have been properly investigated and assessed by the defendant in proper workplace management; that the assessment should have been made of the plaintiff's safety including warning the plaintiff of the threats made by Lee, the defendant would have made themselves aware of these threats by properly investigating the incident and discussing the matter with all other employees. The police should then have been notified of Lee's past and the threats made and the plaintiff, as I have indicated, informed of those threats.

16 The primary judge found that the employer’s breach(es) of duty caused the worker’s injury:

There is no doubt, in my mind, that the defendant’s failing to dismiss Lee, to counsel him, to monitor him and his behaviour, to properly investigate the violent and aggressive conduct and its failure to report this to the police resulted in a real risk of injury to the plaintiff from Lee.
…

In my view, there was a significant risk of violence from Mr Lee, a real risk of him causing injury to the plaintiff or other workers either within the workplace or the environs of the workplace and such risk could have been alleviated by early dismissal, police involvement, appropriate monitoring and counselling and adequate discipline being imposed upon Mr Lee to prevent his continual outburst of violence and anger. There was no difficulty or expense or inconvenience involved in adopting such measures. Each of these should have been carried out by the defendant and if so, on probability the unfortunate shooting would not have occurred.

GROUNDS OF APPEAL

17 The employer relies on the following grounds of appeal:

Wyong Shire Council v Shirt

18 The grounds relate to the existence of a duty of care (grounds 1 and 7), breach of duty of care (grounds 2-8), causation (ground 9), and fact-finding (grounds 10-12). I will deal with these issues in turn.

EXISTENCE OF DUTY OF CARE

19 Mr. Bridge SC for the employer submitted that the employer in the circumstances had no duty of care to protect the worker from an unforeseeable extreme act of violence committed outside the hours of employment on a public street.

20 However, both the primary judge and the respondent relied only on the ordinary duty of an employer to an employee to exercise reasonable skill and care not to expose the employee to avoidable risks of injury arising from the conditions of employment; and the real questions in this case concern the scope of this duty and whether the duty was breached, and if so, whether the injury that occurred was caused by the breach and was not too remote. Accordingly, the challenge to the existence of a duty of care fails.

21 Questions concerning the scope in a particular case of a recognised duty of care, such as that of an employer to an employee, are usually considered in association with the question of breach: Sheather v. Country Energy [2007] NSWCA 179 at [20]-[23]. I will adopt that course in this case.

SCOPE AND BREACH OF DUTY OF CARE

22 Mr. Bridge SC submitted that the duty of an employer does not extend to taking precautions against every conceivable risk. What the employer did in this case was a reasonable response to the magnitude of the risk and the degree of probability of its occurrence.

23 He submitted that the incident of March/April 2000 was a physical altercation between two men in the workplace. The actions of the employer in making it clear that this was unacceptable and that dismissal was an option was a reasonable response. It could not be said that it was unreasonable for the employer not to have summarily dismissed Mr. Lee, and not to have reported the incident to the police.

24 Mr. Bridge submitted that the intermediate incidents showed a somewhat volatile and confrontational individual prone to swearing, yelling, occasional kicking of toolboxes and arguments with co-workers; but no more than that. There were no further incidents of violence. He submitted that Mr. Gittani’s response on 14 December 2001, in pointing out that if there was to be trouble, people would have to go home and then calming them down and trying to convince them to stay, was a reasonable one, particularly in circumstances where there had been no confrontation between the worker and Mr. Lee for more than eighteen months.

25 Mr. Bridge submitted that it could not be said, given the magnitude of the risk and the degree of probability of a serious act of violence, that it was unreasonable of the employer not to have done the various acts that the primary judge found it should have done.

26 Mr. Baran for the worker submitted that there was no error in the primary judge’s reasoning to the conclusion that the employer had breached its duty of care. The workplace was unsafe because of the conduct of Mr. Lee, in assaulting the worker, screaming at other workers, throwing tools, and engaging in an on-going pattern of disruptive and irrational behaviour. He had shown himself to be an unstable, volatile person, capable of violence; and the primary judge’s conclusion that the employer should have dismissed Mr. Lee, notified the police in relation to the March/April incident, and closely monitored and counselled Mr. Lee, were amply justified.

27 In my opinion, there is in the primary judge’s judgment a lack of precision in his findings of breach, especially concerning what the employer should have done and when it should have done it, and this makes it difficult to assess his findings as to breach and also as to causation.

28 It is not altogether clear whether the primary judge did make a finding that the employer was in breach of its duty of care in failing to dismiss Mr. Lee immediately, following the assault on the worker in about April 2000. It is not clear to me precisely what actions by the employer would have been involved in what the primary judge called a zero tolerance policy, or in counselling Mr. Lee. In my opinion, it was necessary in the circumstances of this case to be more precise, not just as to what the employer did not do, but also as to what it should have done.

29 I think the better view is that the primary judge did find it was a breach of duty for the employer not to have dismissed Mr. Lee immediately, following the April 2000 assault, and if so, I would not be satisfied that this was an error. A conclusion that immediate dismissal would have been justified, and indeed a reasonable course, does not of course necessarily mean that failure to do so was unreasonable. However, having regard to the seriousness of the assault and to the two previous incidents of unreasonable and confrontational conduct, the view was open to the primary judge that a reasonable employer would have dismissed Mr. Lee in order to protect the safety of its employees.

30 In any event, it is clear that what the employer actually did fell short of being an appropriate response and did constitute a breach of the employer’s duty of care. On the facts established by the worker, there had been a serious unprovoked assault resulting in physical injury that was far from trivial, coupled with the threat of a more serious assault using a metal or wooden implement. The fact that an employee had suffered an injury made it incumbent on the employer at least to ascertain precisely how the injury had happened, to make an assessment as to whether it was the result of a risk that needed attention and, if it was, to determine what action was needed to deal with this risk.

31 On the worker’s evidence, George Gittani spoke to both the worker and Mr. Lee together, as follows:

He said it’s best for all of us to forget what happened, try not to do same things in the future, if you do something similar you’re gone from the factory. I said why me, I was hit and he was merely [nearly?] hitting with the clamp too. He said it doesn’t matter and then I said can I call the police and he replied you can but it won’t change anything. Then he turned to Mr. Li and he told Mr. Li, you’ve done what you done here, if you done that back in Lebanon where I am from you would be killed.

32 The evidence does not suggest that the employer ascertained with any precision what had happened; and I would infer that it did not, because if it had done so, there would at least have been a far stronger warning directed at Mr. Lee alone.

33 If the employer had ascertained what had happened, it should have recognised that Mr. Lee’s presence in the workplace did constitute a risk of injury to other employees, and should have carefully considered what needed to be done to deal with that risk. Even if it were the case that a reasonable employer would not necessarily have concluded that immediate dismissal was required, at the very least, the employer should have conveyed to Mr. Lee alone, in the strongest terms, that his behaviour was unacceptable and that if he did not control his behaviour he would be dismissed. Thereafter, the employer should have monitored Mr. Lee’s behaviour, and responded either with dismissal or at least with firm warnings to any sign that his behaviour was out of control.

34 In my opinion also, the employer should not have discouraged the worker from reporting the assault to the police, but on the contrary, should have facilitated that course, in circumstances where the worker expressed a wish to do so.

35 As it happened, in the period between the first assault and December 2001, there was no single incident of comparable seriousness, that would necessarily have led a reasonable employer to dismiss Mr. Lee; but there were some incidents that did call at least for firm warnings to Mr. Lee, which were not given.

36 In my opinion also, the events of 14 December 2001 before Mr. Lee’s departure from work called for a different response from the employer. Having regard to Mr. Lee’s history, the employer should have ascertained what had happened, and thus been alerted to the threat made by Mr. Lee that he would be waiting. I agree with the primary judge that the worker should have been informed of that threat. Whether or not the police should also have been informed at that time is a matter of judgment, and I am not satisfied that a reasonable employer would necessarily have informed the police at that stage.

37 Thus, although I do not agree fully with all the primary judge’s findings as to breach, I am satisfied that the employer did breach its duty of care to the worker in the respects I have identified.

CAUSATION

38 Mr. Bridge submitted that there was no evidence justifying a finding as to what would have happened if the employer had done the things the primary judge held it should have done, and particularly as to whether this would have prevented a random irrational act of violence outside the workplace.

39 He submitted that, even if the employer should have done something more and different in April 2000, there had been no trouble between the worker and Mr. Lee between then and December 2001. Further, the attack on the worker in December 2001 was the result of unforeseeable criminal conduct of Mr. Lee. Accordingly, the injury to the worker was too remote from any breach of duty because of the lapse of time, because the events which happened were not foreseeable, and because they were the result of a novus actus interveniens.

40 I find this a difficult question, as regards “but for” causation, as regards the issue of causation as a matter of common sense, and as regards issues concerning remoteness.

41 Because my findings as to breach to some extent differ from those of the primary judge, it is necessary for me to address the question of causation on the basis of my findings as to breach.

42 Accepting that the primary judge did find that the employer should have dismissed Mr. Lee in about April 2000 and was not in error in doing so, “but for” causation of the events of December 2001 is clear. I will return to questions of remoteness.

43 Even if it is considered that a reasonable employer would not necessarily have dismissed Mr. Lee in April 2000, it is clear that there was a risk of injury to the worker by Mr. Lee, and that this risk would have been significantly reduced had the employer fulfilled its duty of care in all the respects in which I have found that duty was breached. What happened was an eventuation of the risk which was thus unreduced because of the employer’s breaches of duty; or to put it another way, the employer’s breaches of duty materially increased the risk of injury to the worker, and that risk eventuated.

44 On the analysis of McHugh J in Chappel v. Hart (1998) 195 CLR 232 at [27] (approved in Naxakis v. Western General Hospital [1999] HCA 22, 197 CLR 269 at [31] per Gaudron J and [127] per Callinan J), this would mean that the employer’s conduct materially contributed to the injury. However, I note that in Naxakis, Gaudron J went on to say at [31] that “In that situation the trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event”. And although in Gordon v. Ross [2006] NSWCA 157, Basten JA at [33] suggested it was not necessary for a plaintiff to prove in addition that the harm would not have occurred if the risk had been reduced by fulfilment of the duty of care, that proposition was robustly denied by Bryson JA at [8] in that case, and questioned by me at [2], with reference to Seltsam Pty. Limited v. McGuiness [2000] NSWCA 29, 49 NSWLR 262 at [105]-[109] and [119], and TC v. State of New South Wales [2001] NSWCA 380 at [58]-[74]. On balance, I agree with what Ipp JA said in Flounders v. Millar [2007] NSWCA 238, to the effect that the onus remains on a plaintiff to prove that the harm in fact resulted from the risk, or increase to the risk, created by the defendant.

45 The problem is particularly difficult in the present case, if considered on the basis that dismissal of Mr. Lee was not required; since I have found a number of breaches of duty occurring over an extended period of time, and, in my opinion, the worker is entitled to have causation considered on the basis that none of those breaches should have occurred. Particularly where the risk against which the worker was entitled to some protection is a risk of harmful conduct from a volatile fellow worker, it is very difficult to make detailed findings as to what would have happened in the event that none of the breaches had occurred, or in the event of various possible combinations of avoidance of breaches of duty. In those circumstances, in my opinion it is appropriate that the Court should take a robust and common-sense approach, without attempting to make such detailed findings: see March v. E. & M.H. Stramere Pty. Limited (1991) 171 CLR 506, Bendix Mintex Pty. Limited v. Barnes (1997) 42 NSWLR 307 at 317.

46 The worker has established that the risk of injury was substantially increased because of the employer’s breaches of duty, and the injury that occurred was a realisation of that risk. I am satisfied that, if there had been no breaches of duty, the dynamics of the workplace would have been substantially different, and the events of 14 December 2001 would not have occurred as they did. Taking a robust and common-sense approach, I am satisfied on the balance of probabilities that the shooting of the worker would in that event not have occurred as it did. I am not satisfied that something similar would have occurred at some other time or in some other way. On that basis, I am satisfied on the balance of probabilities of causation in fact of the worker’s injury by the employer’s breaches of duty.

47 It remains to be considered whether nevertheless the employer should not be held responsible, because of considerations that can be grouped under the general heading of remoteness.

48 In my opinion, there is not such remoteness in time as could affect the employer’s responsibility. Although the most serious breaches occurred in about April 2000, there were other related breaches occurring right up to and including 14 December 2001; and in my opinion, whether or not Mr. Lee should have been dismissed in April 2000, it is appropriate to consider the effect of the totality of all related breaches.

49 I accept that the precise circumstances of the injury were not reasonably foreseeable. The employer had no reason to believe that Mr. Lee had a gun, and apart from the threat that Mr. Lee would be waiting, of which the employer should have become aware, the employer had no particular reason to believe that the worker would be assaulted by Mr. Lee away from the workplace. However, what has to be established is not that the precise circumstances of the injury were foreseeable, including the manner in which the injury came about, but merely that the injury was of a kind foreseeable as a possible result of the breaches of duty: Overseas Tank Ship (UK) Limited v. Morts Dock & Engineering Co. Limited (The Wagon Mound No.1) [1961] AC 388, Hughes v. Lord Advocate [1963] AC 837.

50 In my opinion, what occurred was sufficiently the kind of thing that was foreseeable, to prevent it from being too remote on the ground of unforeseeability. What was foreseeable was that the worker might be injured by being assaulted by Mr. Lee by reason of some problem arising between them as fellow employees of the employer. In circumstances where Mr. Lee had previously taken up an implement with the apparent intention of assaulting the worker with it, it was foreseeable that the assault could well be with a weapon. In my opinion, the circumstance that the weapon actually used was a gun, and the circumstance that the assault took place as the worker was leaving the workplace and in his car parked nearby, rather than at the workplace itself, are not sufficient to make what happened other than something of a kind that was foreseeable.

51 The injury was caused by the voluntary criminal act of Mr. Lee, opening up the possibility that it would be too remote because of a novus actus interveniens. However, in circumstances where the breaches were of a duty to protect the worker against the risk of injury, which in the circumstances of this case extended to the risk of injury from an assault by Mr. Lee, and where what occurred was of a kind that was foreseeable, it is in my opinion not possible to draw the clear line said in Mahony v. J. Kruschich (Demolitions) Pty. Limited (1985) 156 CLR 522 at 528, to be necessary if the tortfeasor is to avoid liability for the damage.

52 Taking a broad view of the matter, in my opinion the employer was negligent as regards the kind of occurrence that occurred; and in my opinion, the injury to the worker was caused by the employer’s breaches of duty and was not too remote.

FACT-FINDING

53 In support of ground 12, Mr. Bridge in written submissions put that the reasons were unclear as to whether or not expert evidence given by Ms. Wyatt for the worker and Mr. Dubos for the employer was relied on. He submitted that, if it were to be inferred that the primary judge accepted some expert evidence in preference to other expert evidence, then the reasons disclose no process of reasoning for finding in relation to that issue.

54 In my opinion, it is clear that the primary judge did not rely at all on expert evidence on in coming to his conclusion. In fact, substantial parts of the reports of these experts were excluded from evidence; and the material that remained was such that, if the primary judge did not consider it assisted him in reaching a conclusion, it was not necessary for him to refer to it.

55 In support of grounds 10 and 11, Mr. Bridge made the following written submissions:

It is on the basis of that acceptance of the Respondent's evidence that his Honour found the existence of and breaches of duty earlier discussed in these submissions. His Honour (at Red 31 and following) deals with the individual incidents of aggression. His Honour's reasons do not deal with that part of the evidence (Black 23N-Q) where the implied threat of dismissal was made in relation to unacceptable behaviour. No reasons are given for not mentioning, not accepting, rejecting or downplaying that aspect of the evidence.

The Chan incident is dealt with briefly (Black 33C-G). The references to the evidence of Chan (described as Chandra in the judgment) do not attempt to reconcile the fact that Chan appears to downplay the incident somewhat (Black 71 and following).

The highest the reference gets to the incident with the young New Zealand co-worker by the name of Ian is an act of temper and swearing (Red 34H-K).

The reference to the evidence of Alexiou (Red 34L and following) does not attempt to reconcile the evidence in chief of Alexiou (Black 112T-W) where the complaint to management was listed in descending order as relating to speed of work, attitude and anger.

Whilst reference is made to the Appellant's submission (Red 35S and following) the reasons do not explore in any way, shape or form the significance, acceptability or weight of the evidence of the Respondent's witnesses dealing with the lack of violent or aggressive interaction between the Respondent and Li between the punching incident and the shooting incident and the utter surprise of the individual witnesses at the events which in fact occurred (Black 55B-D, Black 62I, Black 63I, Black 66V-Y, Black 68C-D, Black76O-P, Blue 1W-Y, Blue 10 F-I, Blue 128K-L, Blue 133M-134J).

56 In oral submissions, Mr. Bridge referred particularly to a series of statements taken by the police after the shooting on 14 December 2001, which he submitted suggested that the worker’s account of Mr. Lee’s behaviour was exaggerated. He submitted that, in his reasons, the primary judge should at least have indicated why he did not accept these statements, in respects in which they conflicted with the worker’s evidence.

57 Relevant material in these statements included the following.

58 A statement by George Gittani referred to the worker telling him that the argument of around April 2000 “had something to do with racial difference between Lee and himself”; and asserted that between that time and 14 December 2001, he did not have any bad reports from staff members concerning Mr. Lee’s behaviour.

59 A statement by Alaa Sayed-Ahmed (an employee) referred to the argument on 14 December 2001 between the worker and Mr. Lee, and asserted that the worker said to Mr. Lee “If you want a fight come outside not in the company” to which Mr. Lee said “I don’t know why you want to fight about”.

60 A statement by an employee Florentino Cruz referred to the argument on 14 December 2001 developing between the worker and Mr. Lee when Mr. Lee said “Come on” in the same way as he and another employee said it to the worker, and asserted he thought Mr. Lee meant it as a joke, that the worker got angry with Mr. Lee, that they started to shout at each other, that the worker almost grabbed Mr. Lee, and that the worker said to Mr. Lee “Let’s go outside. If you want a fight let’s go outside”.

61 A statement by an employee Fernando Oses suggested that he had throughout the time he was employed up to 14 December 2001 a good relationship with both the worker and Mr. Lee, that they helped each other, that he was not aware of any conflict since he worked there, and that the argument on 14 December 2001 commenced after Mr. Lee said to the worker “C’mon, c’mon”, and the worker responded “Don’t play with me” following which they started yelling.

62 There is no reference in these statements to a history of volatile and angry behaviour by Mr. Lee during the period between April 2000 and December 2001.

63 However, I note that it was not put to the worker in cross-examination that he reacted angrily on 14 December 2001 to what was merely a joke by Mr. Lee, nor that his account of other incidents was incorrect or exaggerated. It is true that the worker gave evidence before other witnesses, and that all witnesses were witnesses called by the worker; but even so, if there were to be a serious challenge to the worker’s evidence, one would have expected some cross-examination based on the statements.

64 I do not understand Mr. Bridge to press seriously for this Court to make findings different from those of the primary judge. In my opinion, that would not be possible, consistently with Fox v. Percy (2003) 214 CLR 118. The only question is whether there was a deficiency of reasons which would justify sending the matter back for a new trial.

65 In all the circumstances of this case, in my opinion it was open to the primary judge to regard the differences between the oral evidence given by the worker and the oral evidence given by other witnesses, apart from Mr. Goria, as not being of great moment; and in my opinion, the primary judge gave sufficient reasons for preferring the evidence of the worker to that of Mr. Goria. This is particularly so where, as noted above, there was little cross-examination and the employer chose not to call either of the Gittani brothers.

66 As regards the written statements taken by the police, they were taken at the time of the shooting and mainly concerned the circumstances of the shooting. The witnesses who made the statements, apart from the Gittani brothers, gave sworn evidence at the hearing. In those circumstances, in my opinion the statements were not evidence of such importance that, in accordance with what was said in Mifsud v. Campbell (1991) 21 NSWLR 725, they needed to be explicitly dealt with in the judge’s reasons.

67 Finally, as regards the evidence concerning the implied threat of dismissal (set out in par.[31] above), it is true that the primary judge did not set out this evidence. However, his acceptance of the plaintiff means that he did accept this evidence; and my disposal of the questions of breach and causation have proceeded on this basis.

68 Accordingly, in my opinion these grounds of appeal also fail.

CONCLUSION

69 For those reasons, in my opinion the appeal should be dismissed with costs.

70 IPP JA: I have had the benefit of reading the reasons to be published by Hodgson JA. I set out below my reasons for coming to the same conclusion as his Honour.

71 At about 6.00 pm on 14 December 2001, the respondent, having finished his work as a stonemason for the day, was sitting in his car changing out of his work boots into his ordinary shoes. His car was parked outside the appellant’s workshop where he was employed. A car driven by a co-worker, Mr Lee (like Hodgson JA, I will adopt the spelling “Lee” and not “Li”) pulled up alongside. Mr Lee proceeded to shoot the respondent three times. In consequence, the respondent suffered serious injuries. He sued the appellant, who was his employer and also the employer of Mr Lee, for damages. McLoughlin DCJ upheld his claim. The appellant appeals against the judgment and verdict in the respondent’s favour.

72 The respondent’s case was that, by a course of conduct at work from February 1999 to December 2001 (when the shooting occurred), Mr Lee had shown himself to be a violent, irrational man and it was reasonably foreseeable that he might inflict serious harm on his co-workers: hence, it was negligent of the appellant (prior to December 2001) to have failed to take appropriate steps to prevent this occurring. Amongst the steps the respondent alleged the appellant should have taken was dismissing Mr Lee and thereby removing him from the workplace. The respondent alleged that the appellant had breached the duty of care it owed him to provide a safe workplace and this breach caused his injuries. The primary judge found for the respondent on these matters.

73 The primary judge also found that the appellant had committed other breaches of its duty of care. These included failing to notify the police, failing to warn Mr Lee, failing to monitor his behaviour, failing to counsel him, and failing to investigate the assault and other acts of violence by him. I do not propose to deal with these breaches as I accept the submission of Mr Bridge SC, who together with Mr M Fordham appeared for the appellant, that the evidence did not establish that any had causative effect.

74 The appellant’s grounds of appeal were many, but it is necessary only to mention the following which (understandably) were the only grounds in substance agitated by Mr Bridge:

Wyong Shire Council v Shirt

75 The basic principles in relation to the duty owed by an employer to an employee were set out by the High Court in Czatyrko v EdithCowan University (2005) 79 ALJR 839 (at 842 to 843, [12]) as follows:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”

76 In Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254, Gleeson CJ (at 265, [26]) said that the relationship between employer and employee may give rise to a duty on the one to take reasonable care to protect the other from the criminal behaviour of third parties. See also Ashrafi Persian Trading Company Pty Limited v Ashrafinia (2002) Aust Torts Reports 81-636; Coca Cola Amatil (NSW) Pty Limited v Pareezer (2006) Aust Torts Reports 81-834 (at 68,341, [67] to [69]); and English v Rogers (2005) Aust Torts Reports 81-800 (at 67,701 to 67,702, [42]).

77 The duty of care imposed on the employer was to take reasonable steps to provide a safe workplace. If it was reasonably foreseeable that Mr Lee, for some irrational and unpredictable reason, might take it into his head to assault a co-worker violently, it was reasonably foreseeable that such an assault might occur after hours and outside the workplace. On that basis, the appellant, by continuing to employ Mr Lee in the workshop, rendered it unsafe. Accordingly, the fact that the injury occurred after working hours and outside the workplace is irrelevant.

78 The crucial issues in this appeal, therefore, are breach of duty, causation and remoteness.

79 It has often been observed that the elements of duty of care, scope and breach are dependent on each other and sometimes can only be defined by reference to each other: Tame v New SouthWales (2002) 211 CLR 317 at 349, [90] per McHugh J; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at 350, [99] per Kirby J; Annetts v AustralianStations Pty Ltd (2000) 23 WAR 35 at 49. In Caparo Industries Plc v Dickman [1990] 2 AC 605, Lord Oliver said (at 633):

“Indeed it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing…”

80 Gibbs CJ said in Jaensch v Coffey (1984) 155 CLR 549 (at 553):

“Foreseeability is relevant to the three different questions that may arise in an action for negligence – whether there was a duty of care; if so, whether the defendant was negligent; and whether the defendant was liable for the kind of damage that resulted from the negligence.”

81 In the particular circumstances of this case, foreseeability (insofar as it is relevant to breach), causation, novus causa interveniens and remoteness of damage are bound up with each other.

82 In Perl Limited v Camden London Borough Council [1984] QB 342, Oliver LJ said (at 353):

“I think that the question of the existence of a duty and that of whether the damage brought about by the act of a third party is too remote are two facets of the same problem; for if there be a duty to take reasonable care to prevent damage being caused by a third party then I find it difficult to see how damage caused by the third party consequent upon the failure to take such care can be too remote a consequence of the breach of duty. Essentially, the answer to both questions is to be found in answering the question, in what circumstances is a defendant to be held responsible at common law for the independent act of a third person which he knows or ought to know may injure his neighbour?”

83 Deane J (with whom Gaudron J agreed) in substance adopted a similar approach in March v E& M H Stramare Pty Limited (1991) 171 CLR 506 when he said (at 522):

“For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.”

84 It follows that the mere fact that the act of Mr Lee was deliberate and criminal does not interrupt the chain of causation. The position is covered by the following remarks of Lord Reid in Dorset Yacht CompanyLimited v Home Office [1970] AC 1004 at 1030 (referred to in March v E& M H Stramare Pty Limited by Mason CJ at 518):

“But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the ‘very kind of thing’ which is likely to happen as a result of the wrongful or careless act of the defendant.”

85 In this case, the question of foreseeability is largely determinative of whether the appellant was negligent, and whether the appellant was liable or the kind of damage that resulted from the negligence. The latter question involves both causation and remoteness of damage.

86 By reason of s 3B(1)(f) of the Civil Liability Act 2002 (NSW), that Act does not apply in respect of the civil liability of the appellant to the respondent. Hence, the well-known test expressed by Mason J in Shirt is of application, namely, a risk of injury that is quite unlikely to occur may be foreseeable; but a foreseeable risk “is not one that is far-fetched or fanciful”.

87 I take into account the fact that, even if the risk embodied in retaining Mr Lee as an employee was foreseeable, it does not necessarily follow that doing nothing was an unreasonable response to the risk. In Liftronic Pty Limitedv Unver (2001) 75 ALJR 867, McHugh J (with whom Gleeson CJ agreed) said (at 871, [25]):

“[T]he issue in negligence is always whether reasonable care required elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it.”

88 Here, however, the risk was serious; as I attempt to demonstrate later, the prospect of Mr Lee causing serious injuries to an employee by an irrational act of violence was real; the cost and expense of dismissing him were virtually nil; and the appellant did not suggest that it was inconvenient to dismiss him. These matters encompass the elements of the test in Shirt (at 47 to 48), and, subject to foreseeability, the balancing exercise to be undertaken must be answered in favour of the respondent, hence the need to focus on foreseeability.

89 In addressing foreseeability, I would adopt the approach of Lord Goff in Smith v Littlewoods Organisation Limited [1987] 1 AC 241 (at 279), namely:

“When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed. I do not myself subscribe to the opinion that liability for the wrongdoing of others is limited because of the unpredictability of human conduct.”

90 I turn now to the facts of the case. The primary judge accepted the respondent’s evidence about Mr Lee’s conduct towards him and the other workers. He did not regard the appellant’s foreman, Mr Raad Goria, as a reliable witness. The appellant called no other witnesses to rebut the evidence of the respondent’s witnesses. The facts recounted below (save where otherwise indicated) are taken from the primary judge’s reasons and the respondent’s testimony.

91 In February 1999, the respondent commenced work as a stonemason with the appellant. Mr Lee commenced work with the appellant some ten months later.

92 In the same month that Mr Lee commenced his employment with the appellant, he was involved in an argument with a co-employee, Chandra Chan, described by the respondent as a “quiet and sort of withdrawn person”. Mr Chan was attempting to explain to Mr Lee “how to polish”. According to Mr Chan, Mr Lee was not “happy” about being told what to do. This led, as the judge found, to Mr Lee acting in an aggressive way towards Mr Chan and “screaming and yelling” at him.

93 In February or March 2000 (two to three months after the Chan incident), Mr Lee became involved in an altercation with Mr Kosta Alexiou, another co-employee. Mr Lee had taken Mr Alexiou’s work boots without permission and was wearing them. According to Mr Alexiou he asked Mr Lee, politely, to take the boots off and give them back. Mr Alexiou explained:

“His ones were just there, but he liked the new boots which were mine.”

94 After this incident, Mr Alexiou told his boss, Mr George Gittani, how Mr Lee had behaved. He said to Mr Gittani, “he’s getting angry on occasions when he shouldn’t get angry” and “he’s no good for the company”. Mr Alexiou told Mr Gittani to “get rid” of Mr Lee “nice and quick”.

95 Mr Alexiou said that Mr Lee “was always angry” and he often heard him swear. Conduct of this kind was repeated after the boots incident on frequent occasions. Mr Alexiou said:

“I’ve seen him different to others. And he was like a weird person, yes, he was weird”.

96 In about April or May 2000, the respondent was working at a particular bench and Mr Lee asked him to swap positions. The work that the respondent was doing could only be done on that bench so he told Mr Lee that he would not be able to move. Mr Lee immediately started yelling and swearing at the respondent. The respondent told him not to swear at him and, unexpectedly, Mr Lee struck the respondent in the eye with his fist. Mr Lee was holding an implement capable of being used as a weapon. The respondent said it was a metal clamp about two kilograms in weight. Another co-worker, Mr Sayed-Ahmed, said it was a piece of timber about the length of his arm. It looked as if Mr Lee was going to strike the respondent with the implement he was holding. Two other co-employees, however, restrained him. The respondent described the blow in his eye as “pretty heavy”. His eye was closed and painful and remained in that state for about ten days.

97 The respondent told Mr George Gittani that the respondent had struck him and tried to hit him with a clamp as well. Mr Lee gave Mr Gittani a different version of what had occurred. Mr Gittani told the respondent that it would be best for everyone if he forgot what happened and that if something similar occurred again “you’re gone from the factory”. The respondent protested, saying that Mr Lee was the aggressor. Mr Gittani said that that did not matter. The respondent asked if he could call the police. Mr Gittani replied that he could but it would not change anything. Mr Gittani then turned to Mr Lee and told him that, if he had done “back in Lebanon where I am from” what he had “done here”, he would be killed.

98 As Hodgson JA points out (at [27]), there is a lack of precision about the primary judge’s findings. Nevertheless, Mr Bridge accepted (correctly, in my view) that his Honour at least implicitly found that the appellant had breached the duty it owed the respondent by not dismissing Mr Lee after his assault on the respondent in April or May 2000.

99 The primary judge said:

“I accept that Mr Lee was violently aggressive and frequently threatened violence and conducted himself in a manner that conveyed hostility to those in the workplace.”

“In my view, there was a significant risk of violence from Mr Lee, a real risk of him causing injury to the [respondent] or other workers either within the workplace or the environs of the workplace and such risk could have been alleviated by early dismissal …”

100 I agree with these findings. The first assault on the respondent in April or May 2000 was unprovoked. The respondent received a serious blow to the eye. Had the two co-workers not stopped Mr Lee from striking the respondent with the metal clamp or piece of wood, it is likely that the respondent would have sustained additional serious injuries. Mr Lee was attempting, at least, to injure the respondent significantly, and, on the judge’s findings, without any rational reason. This assault followed shortly after the incident with Mr Chan and the incident with Mr Alexiou. Each of the latter incidents involved unprovoked displays of seriously aggressive conduct on the part of Mr Lee. Mr Alexiou had warned Mr George Gittani that Mr Lee was always angry and had advised him to dismiss Mr Lee. Even after the incident with Mr Alexiou, Mr Lee had manifested irrational anger in the workplace.

101 In my view, after the first assault on the respondent, the appellant, through Mr Gittani, should have realised that Mr Lee was a serious danger to his co-workers. He had shown himself to be a person prone to frequent irrational outbursts of anger and violence and had caused serious harm to a worker, attempted unsuccessfully to inflict even greater harm and had abused other co-workers. In my view, after the first assault on the respondent, Mr Lee’s presence in the workshop constituted a foreseeable danger to other workers. It was known to the respondent that Mr Lee was liable to lose his temper, uncontrollably, and react violently towards others. In my view, it was reasonably foreseeable that Mr Lee might use violence of an extreme kind, sufficient to cause extremely serious injuries.

102 Mr Gittani told Mr Lee that, had Mr Lee behaved in Lebanon the way he had in the workshop, he would have been killed. In my view, that behaviour, in Australia, called for Mr Lee’s dismissal. That was necessary in exercising due care to protect the other workers in the workshop.

103 In my view, the primary judge was correct to hold that the appellant was negligent in failing to dismiss Mr Lee after the first assault. In coming to this conclusion, I have attempted to place myself in the position of a person in the respondent’s position at the relevant time and not to look at the matter in hindsight.

104 Mr Lee continued, after the first assault, to manifest irrational aggressive conduct.

105 At some unspecified later date before December 2001, Mr Lee became “very angry” with a co-worker from New Zealand. Mr Lee became particularly angry on occasions when the foreman, Mr Goria, complained about his work performance. Mr Lee would become furious with the foreman, throw his tools, scream, yell and swear in a very loud voice. Yet another co-worker, Mr Oses, testified that Mr Lee would become angry, swear and sometimes throw tools when he got things wrong, generally. Mr Oses said this occurred “[m]aybe once a week”. He said that Mr Lee would appear to be “[v]ery angry, very frustrated” and his face would become red and “mean”.

106 The primary judge found, in effect, that there was a course of conduct by Mr Lee after April 2000 that involved acts, on his part, of violence and aggression. His Honour said:

“After April 2000, because of the breaches of the [appellant’s] duty to the [respondent] and other workers there was a continual risk for their safety by actions from Lee of violence and aggression, both in the workplace and without.”

107 That he was capable of such behaviour was shown in April or May 2000 when he had to be restrained from striking the respondent with the clamp or wooden implement. That his behaviour was irrational, unpredictable and volatile was demonstrated throughout the period from the inception of his employment until he shot the respondent. This was a man who, virtually at weekly intervals, erupted into irrational anger and lost his temper.

108 His Honour’s reasons include a finding that, if the appellant should not have dismissed Mr Lee after the first assault, it should then at least have given him a serious warning, and “upon him showing further violence, he should have been dismissed instantly”. His Honour does not expressly find that the appellant was negligent in failing to dismiss Mr Lee, on this alternative basis, before the second assault occurred on 14 December 2001, but I think that such a finding is implicit in his reasons.

109 I agree with the primary judge that if the appellant was not negligent in failing to dismiss Mr Lee immediately after the first assault in April or May 2000, it was negligent in not dismissing him by the middle of 2001. By then more than a year had elapsed since the first assault during which time the appellant on virtually a weekly basis would manifest outbursts of irrational anger. His irrational personality and tendency to frequent displays of aggressive behaviour had continued. As Hodgson JA observes, the totality of his conduct must be considered.

110 I appreciate that, as Mr Bridge stressed, Mr Lee was not physically violent between the first assault and the shooting incident. But he had shown himself capable of serious physical violence and he had not become any calmer. His continuing rages meant that he remained a sinister menace on the workshop floor.

111 The situation was comparable to the following notional situation. Assume that a petrol-driven machine on the workshop floor emitted strange noises and odours in December 1999 and again in February 2000. Assume that in April or May 2000, after emitting the same noises and odours, a part of the machine caught fire which was put out by the efforts of workers. Assume that nothing was done to investigate or change the mechanism of the machine and thereafter, on a virtually weekly basis until December 2001, the machine emitted the same noises and odours and the employer did nothing about that. Assume that in December 2001, after emitting the same noises and odours, the machine caught fire again but this time exploded and caused massive harm. I do not think that, because an explosion occurred (which was something new), the damage was not foreseeable or was too remote to be recovered.

112 Incidents occurred on 12 and 13 December 2001 when Mr Lee became very angry with the respondent. These culminated on 14 December 2001 at midday when there was an incident in the lunchroom with Mr Lee and the respondent yelling, arguing and pushing. At 6.00 pm that day, the respondent left work, and went to his car. He was sitting there changing his safety boots to his shoes when Mr Lee stopped his vehicle next to the respondent’s vehicle. Mr Lee opened his window and showed the respondent that in one hand he was holding a gun and in the other a large knife. Mr Lee told the respondent that he would kill him. The respondent moved to the passenger seat of his car and protected his head with his arm. Mr Lee fired three times and a bullet penetrated the respondent’s right armpit. He suffered serious injury.

113 Had the respondent dismissed Mr Lee in mid-2001, the respondent would not have been shot as occurred. It is possible that, on dismissal, Mr Lee might have caused some other kind of harm to some person not possible to identify, but that is entirely speculative and does not rebut the inference that, on a common sense basis, the failure to dismiss Mr Lee earlier was a cause of the respondent’s injuries.

114 As regards remoteness, I was initially troubled by the fact that the respondent’s injuries were caused by Mr Lee’s attempt to kill him. In those circumstances, were the injuries of a general kind or class that might reasonably have been foreseen as a consequence of the appellant’s breach? (Chapman v Hearse (1961) 106 CLR 112 at 120 to 121). On reflection I consider that this question must be answered in the affirmative. Mr Lee, during the first assault, had shown himself, in circumstances where no rational person would be provoked, to be ready to strike, and desirous of striking, the appellant with a heavy instrument. Having regard to the totality of his conduct, it is not much of a step from there, after further confrontations, to shooting to kill the appellant.

115 I would add that, having found that there was a duty on the appellant to take reasonable care to prevent damage being caused to the respondent by Mr Lee, I find it difficult to see how damage in fact caused by Mr Lee consequent upon the failure to take such care can be too remote a consequence of the breach of duty (Perl Limited v Camden London Borough Council at 353 per Oliver LJ).

116 I would dismiss the appeal with costs.

117 McCOLL JA: I have had the benefit of reading in draft the reasons to be published by Hodgson and Ipp JJA respectively. I agree with the orders each proposes for the following reasons.

118 I adopt their Honours recitation of the facts and repeat or supplement them only to the extent necessary to give content to these reasons.

119 The appellant was the employer of both the respondent and Mr Lee. Over the approximately two years prior to Mr Lee shooting the respondent outside his workplace, in a public street, Mr Lee had engaged in conduct which, as Ipp JA says (at [72]), showed him to be a “violent irrational man”.

120 Significantly, prior to the incident in April or May 2000 in which Mr Lee severely injured the respondent, he had reacted violently and with apparently little or no provocation to incidents in the workplace. The first incident involving the respondent occurred when the respondent declined Mr Lee’s request that he change workbenches. Mr Lee then started to swear and, when the respondent remonstrated with him, struck the respondent a severe blow with his fist, such that the respondent bore the signs of his injury for 10 or so days. Further, Mr Lee then seized a weapon, either a heavy metal G-clamp or a large piece of timber and was, according to the primary judge, “shaping up to strike [the respondent] again”, but was restrained by two co-workers. While management chided both workers, Mr Lee was not disciplined. Further, the appellant did not report the matter to the police, even though Mr Lee had criminally assaulted the respondent and discouraged the respondent from doing so.

121 Thereafter Mr Lee continued to behave erratically and violently, throwing away his tools and behaving aggressively to his fellow workers and the supervisor, Mr Raad.

122 Over the three days prior to the incident which culminated in Mr Lee shooting the respondent, Mr Lee had screamed at the respondent, verbally taunting him and, in response to being reproached by the respondent for this conduct, as the trial judge recorded, “getting very angry telling the plaintiff to fuck off, shaking [sic, shaping] up to him in an aggressive manner with clenched fists with Lee’s face totally changing with apparent rage.” (RED 22) The respondent’s supervisor, Mr Rard Guria, described Mr Lee as “very upset, very angry, ready to fight”. After Mr Guria intervened, he told the respondent to avoid Mr Lee as “he’s a sick man don’t get into any arguments”. (RED 23) Soon after, Mr Jason Gittani, one of the directors of the appellant, made Mr Lee and the respondent shake hands. The respondent described Mr Lee as “clearly still being angry”, a statement the trial judge found was confirmed by Mr Gittani in his statement to the police.

123 Mr Lee then left the workplace without permission, but before he did so, a Mr Cruz heard him saying:

“I’m going home and I’ll be waiting or I’ll be outside.”

124 A Mr Osis also, according to the trial judge, “heard some threats and words to the effect from Lee that he will be back”. The trial judge found that “there was no investigation or nobody spoke to Mr Cruz or Mr Osis as to what they had heard on that date.

125 At trial counsel for the respondent submitted that the appellant ought to have dismissed Mr Lee in 2000. He argued that that would have prevented the shooting as the evidence did not reveal any relationship between the respondent and Mr Lee other than as fellow employees, a relationship which dismissal would have terminated. He contended that the failure to dismiss Mr Lee exposed the respondent and his co-workers to risk of injury because Mr Lee had displayed a propensity to solve workplace tensions with the violence of the sort that eventuated on 14 December 2001.

126 Like Hodgson and Ipp JJA, I agree that the primary judge’s findings are not crystal clear. But it is apparent, as Mr C Bridge of Senior Counsel, who appeared for the appellant with Mr M Fordham, conceded that the trial judge implicitly found that the appellant had breached its duty to the respondent by not dismissing Mr Lee after he assaulted the respondent in April or May 2000.

127 Neither of the Gittani brothers, who were the principals in the appellant company, gave evidence. The trial judge accepted generally the respondent’s evidence. He concluded that Mr Guria, the foreman, who was “to some degree responsible for the workplace and workplace safety” had consciously downplayed in his evidence his understanding of Mr Lee’s misconduct. He accepted that:

“Mr Lee was violently aggressive and frequently threatened violence and conducted himself in a manner that conveyed hostility to those in the workplace ... [and] in those circumstances … there was a duty on the defendant to counsel, warn, and discipline Lee because of his conduct.”

128 The trial judge accepted that a reasonable employer would have communicated a zero tolerance policy of workplace violence and that the appellant did not have such a policy. His implicit finding that the appellant ought to have dismissed Mr Lee would appear to embrace the proposition that a zero tolerance policy of workplace violence would have led to Mr Lee’s dismissal shortly after he was employed, he having first displayed violence in late 1999. At the very least, however, the trial judge implicitly accepted the respondent’s submission that the appellant ought to have dismissed Mr Lee after the assault on the respondent in April/May 2000 as there were no extenuating circumstances which would warrant giving him a second chance: AWU-FIME Amalgamated Union v Queensland Alumina Ltd (1995) 62 IR 385 (at 393) per Moore J.

129 The trial judge accepted that there was no suggestion that there were no extenuating circumstances when he assaulted the respondent in April/May 2000. Mr Lee had not been provoked, nor had he acted in self-defence. The trial judge held that the failure to dismiss Mr Lee in those circumstances left the respondent and other workers exposed to Mr Lee’s unprovoked violence and unpredictable outbursts of violence or anger and to a continual risk for their safety by actions of violence and aggression from Mr Lee, both in the workplace and without. His Honour accepted that Mr Lee’s conduct was often “irrational and unpredictable”, and that while it may not have been foreseen that he would have used a gun in the manner he did upon the respondent, it was readily foreseeable that he might use violence.

130 His Honour found that there was no difficulty, expense or inconvenience involved in, inter alia, the appellant dismissing Mr Lee, a conclusion the appellant does not challenge.

131 The trial judge also concluded that the fact Mr Lee’s act of violence occurred just outside the workplace was of no consequence and resulted from the appellant’s failure to adopt and put in place proper and safe workplace practices.

132 The appellant’s principal submission is that the appellant’s duty of care as the respondent’s employer did not extend to protecting the respondent from the act of Mr Lee in shooting the former off the premises and after hours. The shooting was said to be so far removed from Mr Lee’s previous acts as to make it a “fantastic possibility”. The appellant’s duty of care as an employer was said not to extend to protecting the respondent form the act of Mr Lee shooting the respondent off the premises after work. This was said to be because of the lack of control that could be exercised by the appellant once Mr Lee left his place of work.

133 In Modbury Triangle Shopping Centre Pty Ltd v ANZIL [2000] HCA 61; (2000) 205 CLR 254 (at [26]), Gleeson CJ described the relationship of employer and employee as being one where there was “a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be”. His Honour cited, in support of that proposition, three cases, Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070, Public Transport Corporation v Sartori [1997] 1 VR 168 and Fraser v State Transit Authority (1985) 39 SASR 57. In each of these cases the employer was found liable in negligence to an employee injured by the criminal conduct of a third party.

134 I understand Gleeson CJ’s remark in Modbury to encompass a duty on the part of an employer to protect employees from the criminal behaviour of fellow employees. As he pointed out in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 (at [42]), it is uncontroversial that an employer is liable for negligent acts of an employee and, too, that employers may also be vicariously liable for intentional and criminal wrongdoing engaged in solely for the benefit of an employee even in cases where “the wrongdoing constitutes a flagrant breach of the employment obligations”. When it is understood that an employer’s liability for the negligent acts of its employees stems from the nature of the duty of care it owes employees, the proposition that an employer may be liable for criminal acts of an employee perpetrated on a fellow employee appears no less controversial.

135 In New South Wales v Lepore (at [2]), Gleeson CJ referred to paragraph [26] in Modbury to describe the relationship between a school authority and pupil as “one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal”. His Honour’s remarks clearly also encompassed the relationship of employment.

136 The reason the employer is subject to that exceptional obligation is because of the heavy burden imposed on employers to take reasonable care for the safety of their employees.

137 An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (at [12]). That non-delegable duty is “a duty … of a special and ‘more stringent’ kind”: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (at 550) per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

138 In New South Wales v Lepore, McHugh J (at [144]) explained that:

“When a duty is non-delegable, the person owing it must ensure that the duty is carried out. If the duty is to take reasonable care of some person or property, the person must ensure that reasonable care is taken.”

139 Gummow and Hayne JJ pointed out (at [255]) that the categories in which the duty to take reasonable care is non-delegable are:

“… identified as a relationship in which the person owing the duty either has the care, supervision or control of the other person or has assumed a particular responsibility for the safety of that person or that person’s property.”

140 Their Honours explained (at [257]) that:

“A duty to ensure that reasonable care is taken is a strict liability … [and] [t]here is a breach of the duty if reasonable care is not taken, regardless of whether [the person] that owes the duty has itself acted carefully.”

and (at [259]) that:

“The duty of an employer to provide a safe place and system of work and a safe staff is said to be non-delegable because ‘the employee’s safety is in the hands of the employer’ and because ‘[t]he employee can reasonably expect … that reasonable care and skill will be taken’.”

141 The content of the employer’s obligation in the context of a criminal attack on an employee by a third party was considered by Mason P in English v Rogers [2005] NSWCA 327, a case in which an employer was found liable for injuries to an employee caused by the criminal behaviour of a third party.

142 In English, a cleaner and his wife whose duties required them to work at a hotel in the early hours of the morning were ambushed by a masked gunman, who held them confined, at times tied up, while awaiting the arrival of the hotel manager. When the latter came on the scene he was forced to open a safe containing a sum of money. The gunman escaped. The event was found to have caused the plaintiff psychiatric injury. The plaintiff was employed to clean the hotel by the appellant, which was, in turn, contracted by the hotel.

143 Mason P (with whom Santow JA and Brownie AJA agreed) held that the plaintiff’s employer was liable for breach of its non-delegable duty of care. His Honour described the appellant employer’s duty in the following terms:

Czatyrko

See also Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at 439[34]; Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222.

Kondis v State Transport Authority

The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility.

. If he requires his employee to work according to an unsafe system he should bear the consequences.’

………

“take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by provision of adequate safeguards”

Czatyrko

If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue

144 My researches have unearthed one case in which the prospect of an employer being liable for a criminal assault on an employee by a fellow employee was recognised. In Antoniak v The Commonwealth (1962) 4 FLR 454 the plaintiff was injured when he was assaulted, without provocation, by another employee. The assault took place at a Naval Depot in Canberra. On the morning of the assault the plaintiff reported to a Lieutenant Commander at the Depot that the assailant had threatened to kill him and he wanted some protection. An officer was sent to observe the assailant, but saw him to be working quietly. No further action was taken. Two months earlier there had been a minor scuffle between the assailant and another man which had also been reported to the Lieutenant Commander. Other than that the Lieutenant Commander had no other report or information indicating the assailant was, or was likely to be violent or dangerous towards his fellow workers and, Dunphy J found, he had no reason other than the complaint on the morning of the assault, that the assailant was likely to be violent or dangerous. Dunphy J concluded (at 457) that the plaintiff was assaulted “violently and without provocation”.

145 Dunphy J (at 457) rejected the proposition that the defendant could be vicariously liable for the assault holding that the assailant’s act “was an independent personal act which was not connected with or incidental in any manner to the work which he was either expressly or impliedly authorised to perform”, referring to Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370.

146 His Honour then considered (at 457 - 459) the plaintiff’s alternative case based on an allegation that the defendant had failed to select and employ competent and reliable staff and had employed an emotionally and mentally unbalanced man to work in the plaintiff’s vicinity and had failed to take any steps to safeguard the plaintiff following the threats by him the same morning to kill the plaintiff. He said (at 458):

“It is the duty of employers, for the safety of their employees, to have reasonably safe plant and machinery. It is their duty to have premises which are reasonably safe. It is their duty to have a reasonably safe system of work. It is their duty to employ reasonably competent fellow workmen. All those duties exist and have existed from time immemorial as far as the common law is concerned but the development of the law, in practical application, has come about by litigation, by judge made decision and, in more modern times, by statutory provision. If, for instance, the system of an employer's working is found to be beset with dangers, it is the duty of the employers to evolve a reasonably safe system so as to obviate those dangers and I agree with Streatfield J. when he says ‘upon principle it seems to me that if, in fact, a fellow workman is not merely incompetent but, by his habitual conduct, is likely to prove a source of danger to his fellow employees, a duty lies fairly and squarely on the employers to remove the danger’ [1957] 2 Q.B. 350.

Hudson’s Case

147 His Honour concluded (at 459) that the only report the defendant had had concerning the assailant prior to the assault was “of such a minor nature” that it did not warrant action. However, in the present case, on the trial judge’s findings, the appellant knew that Mr Lee was by his habitual conduct likely to prove a source of danger to his fellow employees. In such circumstances the appellant was, in my view, under a duty to remove the danger so as to avoid exposing the respondent to a risk of injury arising from Mr Lee’s deliberate or voluntary, albeit irrational, conduct.

148 It is useful, too, to consider the cases to which Gleeson CJ referred in Modbury (at [26]) which cast light on the issues of foreseeability and causation.

149 In Chomentowski, an employer was found to have breached its duty to take reasonable care for an employee’s safety, when the latter was robbed at 1.45am when seeking to deposit the night’s takings in the night safe of a bank about half a mile away from the workplace.

150 On the issue of foreseeability, Sugerman P said: (at 1073):

“In my opinion it was clearly open to a jury to conclude from the circumstances that there was a reasonably foreseeable risk of robbery and of injury to the plaintiff in the course of or for the purposes of the robbery—a real risk and not a mere ‘fantastic possibility’… It was not the less foreseeable in the relevant sense because, the circumstances being recurrent, it was not possible to foresee on what night, or in what precise manner, injury might occur … Nor is it in point that the plaintiff and his predecessor as manager had thus far encountered no such mishap in the course of their nightly journeyings to the night safe. In other contexts similar considerations are frequently material—perhaps even decisive. But in the present context the existence of the risk and its foreseeability were inherent in the circumstances as a whole; and they would continue so to be so long as the same circumstances should continue to recur, as in fact they did. Immunity in the past would hold out no promise of immunity from or reduction of risk each night in the future, any more than the fact that one has not had a viral infection for many winters gives promise that, on that account alone, one will not suffer one, or is less likely to suffer one, next winter.”

151 Sugarman P (at 1074 - 1075) accepted that the employer was “unable to control the activities of members of the criminal class”, but concluded that the employer was able to avoid exposing the plaintiff to their consequences.

152 The employer sought to argue that the robber’s conduct was a novus actus interveniens. Sugarman P rejected that argument (at 1075) saying that permitting it to run:

“… in a case where the very duty relied upon is not to expose the plaintiff to the risk of harm by wrongdoers would be not merely to assert a breach in a chain of causation but to deny the existence of the duty itself - indeed to deny the possibility of the existence of such a duty.”

153 He quoted from the American Law Institute’s Restatement of the Law of Torts (vol 2, s 449, comment a.):

“The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability, cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other’s exposure to the very risk, from which it was the purpose of the duty to protect him, resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.”

154 Mason JA (as his Honour then was) rejected the employer’s argument that it could not be responsible by reason of its negligent conduct for injury to an employee deliberately occasioned by the act of others. His Honour said (at 1085 - 1086):

“It is well accepted that a person may be liable in damages as a consequence of his negligent act for an injury flowing from that act, although the injury was more immediately occasioned by the subsequent negligent conduct of another ( Chapman v Hearse (1961) 106 CLR at 122-125). So also it is now established that the subsequent occurrence of deliberate human action which immediately occasions the injury will not preclude the negligent conduct of the defendant, occurring at an earlier point of time, from being regarded as the cause of the injury ( Home Office v Dorset Yacht Co Ltd [1970] 2 WLR 1140; [1970] 2 All ER 294).

Taking due account of the observations made in the judgment of the High Court in Chapman v Hearse , with respect to the decision in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd. The “Wagon Mound” (No 1) [1961] AC 388, and the relevance, as there expressed, of the element of ‘foreseeability’ as an aspect of causation, in particular where, as here, the question was that of determining whether damage ought to be attributed to one of two ‘causes’, I am of the opinion that the plaintiff’s injuries can properly be regarded as flowing from the defendants’ negligence.

155 In Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 (at [8]), Mason P (with whom Tobias JA agreed) remarked that the last paragraph I have quoted reflected Dixon J’s reasoning in Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 and commented that:

“There is more than a hint of circularity in this approach especially when it is recognised that the plaintiff retains the onus of persuasion albeit that the court may (not must) infer causation.”

156 Nevertheless, in March v E & MH Stramare Pty Ltd [1990] HCA 12; (1990) 171 CLR 506 (at 517 - 518), Mason CJ (with whose reasons Toohey J generally agreed, and Gaudron J agreed) applied Chomentowski, saying:

“The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant’s negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk … To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.”

157 In Fraser v State Transit Authority, the plaintiff, a female bus operator, drove her bus at night to the terminus of her route and stoped in a layover area where she was required to wait for five minutes. She was alone in the bus and was attacked by a man who dragged her from the bus, brutally assaulted her, causing her to suffer serious injuries. There was a history of abuse of, and some assaults on, operators going back three or so years prior to the assault on the plaintiff. A month or so before the assault on the plaintiff, another female bus driver had been sexually assaulted after pulling her bus over at a terminus. No further steps to safeguard bus operators were taken after that assault.

158 Bollen J held (at 64) that the defendant owed the plaintiff, and each bus operator, a duty to take reasonable steps to safeguard them from attack. The defendant did not deny this proposition, but argued it had discharged its duty of care. Bollen J considered (at 64) that discharging its obligation to take reasonable steps for safety required the defendant thoroughly to consider the risk of attack at bus termini, both in general, but also in the light of past events.

159 Bollen J accepted (at 66) that the attacks on both the plaintiff and the victim of the sexual assault were “unusual” but added that that did not mean that the reasonable employer could not foresee that they might happen. In his Honour’s view Mason J’s observations in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47 - 48) were apposite and accorded with the remarks of Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 (at 26):

“… that a reasonable and prudent employer is (i) bound to take into consideration the degree of injury likely to result; (ii) bound to take into consideration the degree of risk of an accident; (iii) entitled to take into consideration the degree of risk, if any, involved in taking precautionary measures.”

160 Bollen J (at 68) also applied Sugarman P’s observations in Chomentowski (at 1073) concerning foreseeability of risk of injury and concluded that the magnitude of the risk and its degree of probability was such that action by the defendant was demanded. His Honour held (at 74) that the defendant was guilty of failure to provide a safe system of work because it was practicable to adopt a system where bus operators took their layover time in a safer place.

161 Charles JA (with whom Brooking and Callaway JJA agreed) applied Chomentowski and Fraser in Public Transport Corporation v Sartori (at 173). In that case, the respondent was injured when attacked at about 1am by an intruder in a car park provided by his employer. The car park was in the open air, was enclosed by perimeter fencing topped with barbed wire, there was security lighting and an automatically activated floodlight. There was also a lock on the gate to which each employee had a key but, despite a written instruction near the gate to keep it locked at all times, it was often left unlocked. There was no evidence of any previous history of intruders, thieves or assailants at the premises or in the car park or any basis for concluding that the gate was locked in order to keep out violent people: Sartori (at 170-171). Nevertheless, Charles JA concluded (at 173) that the security precautions taken were directed to preventing the entry into the car park of intruders such as those who assaulted the plaintiff and, further, that if they were undertaken without due care:

“… a dangerous situation would be likely to arise from the wrongful entry of trespassers with criminal intent, especially late at night.”

162 In his Honour’s view, the circumstances which gave rise to the duty of care were sufficiently connected with the course of the plaintiff’s employment, being the means of egress from the premises, to attract the relevant duty of care.

163 Chomentowski, Fraser, Sartori and English v Rogers were all cases where the criminal conduct of the assailant was that of a third party. The employers were, in each case, however, found liable because of their failure to implement a safe system of work in circumstances where it was foreseeable that their failure to do so exposed the employee to an increased risk of injury.

164 On the trial judge’s findings, Mr Lee’s criminal act was not “unexpected”, but was foreseeable to the extent that any conduct by an irrational person can be so. To paraphrase Sugarman P in Chomentowski (at 1073), the existence of the risk that an employee would be injured by Mr Lee, and its foreseeability, were inherent in the circumstances of the appellant continuing to employ an irrationally violent person.

165 As to causation, the appellant was liable if its wrongful act or omission resulted in increased risk of injury to the respondent. If that risk eventuated, the appellant’s conduct materially contributed to the injury that the respondent suffered whether or not other factors also contributed to that injury occurring: Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 (at [27]) per McHugh J; approved Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [31] per Gaudron J, at [127] per Callinan J). Or, as Mason P, said in English v Rogers (at [73]), if the employer fails to take such measures as are necessary to eliminate the risk, and the risk comes home in consequence of the breach, then liability will generally ensue”.

166 By employing the respondent, the appellant assumed responsibility for his safety. Discharge of that duty included, among other matters, employing safe staff: New South Wales vLepore (at [259]). It was obliged to take reasonable care to ensure its employees were not exposed to the risk of injury from fellow employees prone to behaving irrationally and violently. Mr Lee was such a person.

167 Failing to dismiss Mr Lee after the serious assault on the respondent in 2000 exposed his fellow employees to irrational acts of violence on his part. Or, to put it another way, failing to dismiss Mr Lee kept the parties in a relationship from which, to the appellant’s observation, Mr Lee was liable to act violently and irrationally.

168 In my view, the fact that Mr Lee’s act was committed outside work hours in a public street does not militate against liability. If the appellant was, as in my view it was, guilty of a breach of its duty of care to provide a safe system of work for the respondent, then just as it does not matter that Mr Lee’s act was deliberate or voluntary, so too it is not “conclusive against liability” that Mr Lee’s “wrongdoing occur[ed] away from the workplace, or outside normal working hours …”: Lepore at [40] per Gleeson CJ.

169 It is not necessary to debate to what degree of remoteness in terms of time and geography the appellant would be liable in other circumstances for the criminal behaviour of an employee. Here, Mr Lee shot the respondent immediately outside the workplace, after a workplace incident in which he had again demonstrated his irrational, violent tendencies. His behaviour may have been deliberate, but the risk that he would engage in such conduct vis-à-vis a fellow employee had been apparent for some time. It was not a fantastic possibility. It was the manifestation of the very risk the appellant was obliged to safeguard the respondent from. In failing to take steps to eliminate that risk the appellant materially contributed to the injury that the respondent suffered.

170 In my opinion the appellant’s approach to this case is misconceived. It is not to point that it had no control over Mr Lee’s conduct outside the workplace. It had control over Mr Lee and the respondent inside the workplace. The respondent’s safety was in its hands. It could “control” Mr Lee by dismissing him when it became aware he was violent and irrational, and certainly by April or May 2000 when it became apparent he was prepared to engage in criminal assaults within the workplace.

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Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355

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CITATION:	Gittani Stone Pty. Limited v. Pavkovic [2007] NSWCA 355
HEARING DATE(S):	16 November 2007
JUDGMENT DATE:	13 December 2007
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 70; McColl JA at 117
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS - NEGLIGENCE - EMPLOYMENT - Scope of duty of care - Causation - Employee injured by being shot by another employee after he left place of employment - Employee had been injured over 18 months earlier in an assault by the other employee at the place of employment - Other occasions of unreasonable conduct by the other employee - Whether employer in breach of duty of care in not dismissing the other employee, or otherwise - Whether injury caused by any such breach, and not too remote.
CASES CITED:	Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 Antoniak v The Commonwealth (1962) 4 FLR 454 Ashrafi Persian Trading Company Pty Limited v Ashrafinia (2002) Aust Torts Reports 81-636 AWU-FIME Amalgamated Union v Queensland Alumina Ltd (1995) 62 IR 385 Bendix Mintex Pty. Limited v. Barnes (1997) 42 NSWLR 307 Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Caparo Industries Plc v Dickman [1990] 2 AC 605 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Chappel v. Hart (1998) 195 CLR 232 Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 Coca-Cola Amatil (NSW) Pty. Limited v. Pareezer [2006] NSWCA 45 Czatyrko v. Edith Cowan University [2005] HCA 14, 79 ALJR 839 Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 Dorset Yacht Company Limited v Home Office [1970] AC 1004 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 English v. Rogers [2005] NSWCA 327 Flounders v. Millar [2007] NSWCA 238 Fox v. Percy (2003) 214 CLR 118 Fraser v State Transit Authority (1985) 39 SASR 57 Gordon v. Ross [2006] NSWCA 157 Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42 Hughes v. Lord Advocate [1963] AC 837 in Mahony v. J. Kruschich (Demolitions) Pty. Limited (1985) 156 CLR 522 Liftronic Pty Limited v Unver (2001) 75 ALJR 867 Macquarie Area Health Service v. Egan [2002] NSWCA 26 March v. E. & M.H. Stramere Pty. Limited (1991) 171 CLR 506 Mifsud v. Campbell (1991) 21 NSWLR 725 Modbury Triangle Shopping Centre Pty. Limited v. Anzil [2000] HCA 61, 205 CLR 254 Naxakis v. Western General Hospital [1999] HCA 22, 197 CLR 269 New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 Overseas Tank Ship (UK) Limited v. Morts Dock & Engineering Co. Limited (The Wagon Mound No.1) [1961] AC 388 Perl Limited v Camden London Borough Council [1984] QB 342 Public Transport Corporation v Sartori [1997] 1 VR 168 Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431 Graham Barclay Oysters Pty. Limited v. Ryan [2002] HCA 54, 211 CLR 540 Seltsam Pty. Limited v. McGuiness [2000] NSWCA 29, 49 NSWLR 262 Sheather v. Country Energy [2007] NSWCA 179 Smith v Littlewoods Organisation Limited [1987] 1 AC 241 Tame v New South Wales (2002) 211 CLR 317 TC v. State of New South Wales [2001] NSWCA 380 Wyong Shire Council v. Shirt (1980) 146 CLR 40
PARTIES:	Gittani Stone Pty. Limited - appellant Miroslav Pavkovic - respondent
FILE NUMBER(S):	CA 40042/07
COUNSEL:	Mr. C. Bridge SC with Mr. M. Fordham for appellant Mr. D.E. Baran for respondent
SOLICITORS:	Hicksons, Sydney for appellant Petrovich Accident Lawyers, Liverpool for respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1760/05
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	22 December 2006