The recent decision by the Queensland Court of Appeal in Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 shows the approach taken by the Courts when considering an employer’s duty of care to employees assaulted by members of the public.
The worker, Kim Yen Tat, was employed by Inghams as a shift worker in its chicken processing factory. On 1 February 2013, Ms Tat was assaulted in the employer’s car park by a former employee who had been loitering with the intent to approach and assault female employees as they finished their late night shifts. The assailant had unsuccessfully attempted to engage with other female employees, prior to attacking Ms Tat.
Ms Tat sued Inghams in the District Court and succeeded. The trial judge found Inghams failed to adequately educate its employees to report suspicious behaviour in and around the car park and the failure to properly educate its staff to report suspicious behaviour enabled the attack.
Inghams appealed the trial judge’s decision on the basis that the attack was not reasonably foreseeable and that the company’s response to the relevant risks to its employees was adequate. Inghams also contended that even if preventative measures had been set in place as pleaded, they would not have necessarily stopped the assault on Ms Tat.
Although the Court of Appeal did not find any error by the trial judge in his conclusions on foreseeability and breach of duty, it found the trial judge erred in his reasoning that if the employer had properly educated its staff to report suspicious behaviour to the security guard, the attack on Ms Tat would not have occurred. Specifically:
- It is a “mere matter of conjecture” that even with security awareness education, the workers who had noticed the attacker earlier would have contacted security in time to prevent the attack on Ms Tat;
- The evidence by those workers indicated that they did not believe the attacker’s conduct towards them was serious enough to alert security;
- Any report to the employer’s security guard by the workers finishing the earlier shift would not have necessarily led to the attacker being identified by the guard; and
- There was no “sufficiently secure evidentiary basis” to conclude that the attacker would have refrained from carrying out his attack after simply being asked to leave by the security guard. The attacker did not appear to be deterred by the risk of being identified by workers who may have known him. He was acting irrationally, and was determined to carry out the intended assault.
Ultimately, the Court of Appeal found the trial judge erred on the question of whether the employer’s breach of duty caused Ms Tat’s injury. The employer succeeded on appeal.
This case demonstrates the necessity of injured workers to not only establish that the employer breached its duty of care, but that the breach caused the injury for which damages are sought.
If injured workers cannot prove the element of causation, their claim for personal injuries damages against the employer will fail.
