And concluded:
"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."