Author: Cindy Badke

Hannah v Barellan Bobcat Hire Pty Ltd was a claim for personal injuries made against an employer by a worker as a consequence of a workplace assault. 

It is worth considering due to recent cases proceeding to the Court of Appeal relating to workplace assaults, one of which was successful (Brisbane City Council v Miles [2011] QCA 250) and one of which was not (Lusk & Anor v Sapwell [2011] QCA 059).

However both Miles and Sapwell involved allegations of negligence on the part of the employer for third party criminal activity.  Hannah relates to an alleged assault by a co-worker and employer.
 

The facts

The Defendant, Barellan Bobcat Hire, was a family company owned by the Plaintiff’s mother and father.  The Plaintiff’s brother also worked for the family business. 

The Plaintiff was sent to a job site on the 8 July 2008 to perform work at a building site.  He encountered a mechanical failure with the bobcat that he was operating. 

The Plaintiff alleges that when he called the employer to advise them of the fault, his mother was aggressive.  He claims that when he got back to the office, his brother and mother assaulted him.

The Plaintiff sued the company claiming that the company was liable for the actions of the Plaintiff’s mother and brother.  He claimed that the Plaintiff’s mother was the “directing mind and will of the corporation”.  He also claimed that, in addition or in the alternative, the actions of his mother and brother represented either a breach of contract, breach of duty or breach of statutory duty.

The employer provided a different version of events.  The Plaintiff’s brother claimed that he heard yelling as he returned to the office.  The Plaintiff’s brother entered the office and asked the Plaintiff to calm down after which the Plaintiff shoved him and the scuffle ensued. 

The Plaintiff’s credibility was called into question.  Under cross examination, he admitted that his brother did not actually have him in a head lock, but had him in a bear hug.  He also did not see his mother use a golf club to hit him, he just drew this conclusion as he had seen her previously holding a golf club.

The Plaintiff had failed to disclose that he had used illicit drugs when directly asked by 2 psychiatrists.  He attempted to explain his lie by saying that if he told the psychiatrists about his drug use, they would only concentrate on this aspect when providing their reports. 

His Honour stated that “when he lied to the psychiatrists about his drug use he knew that their reports were to be used for the purposes of litigation”.  He regarded the Plaintiff’s explanation as nothing more than “a flimsy self-justification designed to evade the consequences of his dissembling behaviour”.

His Honour preferred the evidence of the Plaintiff’s brother and mother, finding that the Plaintiff instigated the altercation by assaulting the brother, and then wrestling with him until they fell to the floor.  His Honour found that the injuries suffered by the Plaintiff were a consequence of his own actions and that his brother was only doing that which was necessary to protect himself. 

Discussion

Unfortunately, his Honour did not discuss many of the interesting potential legal issues raised by the claim.

For example, his Honour did not consider the legal issues in relation to whether the employer was liable for the actions of the plaintiff’s mother as “the directing mind and will of the company”.  Such issues were considered in the case of Midwest Radio v Arnold [1999] QCA 020 and Nationwide News v Naidu [2007] NSWCA 377 where it was found that the harassing actions of a manager were the actions of the company. 

One could argue that the actions of the co-worker were not authorized or permitted by the employer and that the actions of the Plaintiff’s brother were personal and of his own volition, such as was found in the case of Deatons Pty Ltd v Flew (1949) 79 CLR 370.

Often cases involving workplace assaults will involve considering whether employment was a “significant contributing factor”, or merely provided the setting in which the assault occurred (Keefff Taylor-Lawton v QComp 20209/09, Decision of IM Lee of the Brisbane Industrial Magistrate Court delivered 19 April 2010).  Given the relationship between the parties in this case, that may well have been relevant to the tension, which lead to the altercation.

There might also be reason to consider whether the injury was caused by misconduct, within the meaning of section 130 WCRA, such that compensation is not payable (see Keefff Taylor).

The decision does highlight the importance of the Plaintiff’s credibility in cases where the facts are disputed. The Court was not impressed by the Plaintiff’s lies in relation to his illicit drug use and this in turn lead to his Honour disbelieving the Plaintiff’s entire story as to how the events of the day in question transpired.