In a key Workers’ Compensation case, a butcher has been paid $585,000 in damages after being brutally bashed at work, despite previously warning supervisors that the co-worker who attacked him was “a ticking time bomb”.
The Queensland District Court found on June 29, 2018, Top Cut Foods at Burleigh Heads (pictured) failed in its duty of care by not avoiding the ‘foreseeable risk of violence’ against Jamie Colwell by fellow employee Warren Parks.
On January 14, 2014, Mr Parks – a former UK prison inmate with a criminal record of assaults – invited Mr Colwell to a fight in the meat processing plant’s car park.
Mr Parks punched Mr Colwell in the head, causing him with severe physical and psychological injuries, before launching an attack on two colleagues who tried to intervene.
Leading up to the assault, Mr Colwell told a supervisor Mr Parks taunted him with prison stories, saying that he “always knocked someone out” and had also previously “killed someone”.
Mr Parks reported to a supervisor he was “building inside in anger and frustration” caused by mounting tensions with Mr Colwell, who he asked to be separated from.
After the assault, Mr Parks was sacked by Top Cut Foods and criminally convicted, with a 6 month suspended sentence, 150 hours community service, and 18 months’ probation.
Mr Colwell made a WorkCover claim against his employer on the basis that prior to the assault the employer knew such an assault was likely yet failed to take any reasonable measures.
Queensland Law Society Accredited Specialist and Attwood Marshall Partner, Jeremy Roche, explains this key case and its implications on WorkCover claims in more detail.
Compensation for Workplace Assault – Colwell v Top Cut Foods [2018] QDC 119
The Colwell v Top Cut Foods decision highlights the importance of workers reporting any incidents of threats, bullying or aggressive behaviour to their employer and putting this in writing.
The fact this injured worker reported the conduct of his co-worker was the determining factor in establishing liability on the part of his employer and insurance cover under the employer’s WorkCover policy.
Prior to the assault, Mr Colwell had sensibly notified his employer that his co-worker constantly spoke of his history of fighting people, his time in prison for prior assaults, and Mr Colwell was concerned for his safety when forced to work with Mr Parks due to Mr Parks’ disturbing emotional state.
Rather than adopting the common mantra of ‘keeping your head down and mouth shut’ at work, Mr Colwell informed his employer he and Parks were not getting along and he was concerned for his safety.
One week before the assault, Mr Colwell approached his employer and asked if could be moved away from Mr Parks so as to avoid any future trouble.
Surprisingly, the assailant co-worker Mr Parks gave evidence that he had also asked the employer to move him away from Mr Colwell because Mr Parks was “close to losing it”.
The requests were ignored.
Instead, one of the managers made various jokes about Mr Parks’ violent history and his propensity for assault.
The employer was also aware of an altercation that occurred just a few days before Mr Colwell was assaulted, where there had been an aggressive, verbal altercation between the unhappy pair of workers.
Application of the Law
Generally speaking, employers are NOT directly liable for unlawful assaults by their employees where one co-worker randomly attacks another. Naturally, it is difficult to prove that an employer should be liable for the actions of an individual who takes it upon himself to assault another worker, particularly if such an assault is unexpected or unforeseen.
However, the decision in Colwell demonstrates that a court will find an employer liable in circumstances where the employer is ON NOTICE of the ready likelihood of such an assault, yet fails to take reasonable precautions to prevent it from occurring. The employer’s obligation to take reasonable care to provide a safe working environment is non-delegable, and can extend to protecting employees from criminal behaviour of third parties including co-workers[1].
In Colwell, DCJ Kent QC ultimately found that:
- The evidence (particularly that of Mr Parks) that the employer was on notice that Mr Parks was a danger to Mr Colwell was convincing and should be accepted
- Such notice gave rise to a duty of care by the employer to take reasonable steps to avoid the foreseeable risk of violence by Mr Parks to Mr Colwell
- Reasonable steps that could and should have been taken include separating Mr Parks and Mr Colwell at work. Separation of the pair was an inexpensive, readily implemented measure to avoid the risk
- The pair should not have been instructed to walk together to the office immediately following an altercation at work, in circumstances where it is foreseeable that an assault may occur
- The assault was foreseeable and not an isolated and unexpected incident, such as to absolve the employer of responsibility
- The employer was negligent by omission, in that its failure to act (by taking simple, inexpensive remedial action) was a breach of duty by the employer and the injured worker’s damage/losses followed
Because Mr Colwell spoke up and voiced genuine concerns to his employer, rather than putting up with it, staying quiet or whinging to other workers, the employer was held liable for failing to reasonably respond.
Workers’ Compensation Awarded
Mr Colwell was awarded $585,000 in damages for his employer’s breach of duty in failing to take reasonable action to prevent or minimise the risk of injury to Mr Colwell (by way of co-worker assault) in circumstances where the employer was on notice of the impending risk and failed to act – negligence by omission.
[1] Antoniak v the Commonwealth (1962) 4 FLR 454
