TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE
– DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE
–
PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the
Source
Original judgment source is linked above.
Catchwords
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE– DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE–PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where theplaintiff worked as an electrical mechanic forthe defendant – where theplaintiff was attacked by a co-employee and suffered injuries from the attack– where the plaintiffand the co-employee had been involved in aconfrontation shortly prior to the attack – where the co-employee was saidto havetampered with a glass washer such that the plaintiff suffered anelectric shock – where the co-employee was said to have causedpasswordprotection on the work computer rendering the plaintiff unable to carry out hiswork – where the co-employee wrotea racially discriminatory noteproviding instructions for the plaintiff in relation to a particular piece ofwork – where theco-employee was reprimanded for the racially
discriminatory note – whether the injury suffered by the plaintiff was
foreseeable
– whether the defendant breached the duty it owed to the
plaintiff by failing to investigate, reprimand or discipline the co-employee
– whether causation established
Adeels Palace Pty Ltd v Moubarak
(2009) 239 CLR 420
[2009] HCA 48 referred
Antoniak v The Commonwealth
(1962) 4 FLR 454 referred
Gittani Stone Pty Ltd v Pavkovic [2007]
NSWCA 355 referred
Hegarty v Queensland Ambulance Service [2007] QCA
366 cited
Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348
referred
Lusk v Sapwell [2011] QCA 59 referred
Vairy v Wyong
Shire Council [2005] HCA 62
(2005) 223 CLR 422 cited
Judgment (151 paragraphs)
[1]
[1] Douglas J: Mr Alberto Serra, the plaintiff, worked as an electrical mechanic at Couran Cove Resort between 21 May 2007 and 13 July 2007. On the latter date he was attacked by a co-employee, a Mr Peter Markan, who was another electrician at the Resort. He suffered injuries from the attack and his damages have been agreed by the parties at $200,000 including interest and clear of any refunds to WorkCover Qld.
[2]
[2] His argument supporting his claim for damages is that his employer, the defendant, should have dismissed Mr Markan before 13 July 2007, with the effect that he was no longer present at the Resort by that date, or have reprimanded or counselled him before then because of his earlier conduct. Had the defendant done that then the plaintiff contends that his injuries would not have occurred. His case is that the defendant was negligent and in breach of its employment contract with him.
[3]
[3] Because of the nature of the allegations it is necessary to consider the following matters said by the plaintiff to be relevant to the existence of the duties pleaded and the breaches alleged:
[4]
1. An incident between Mr Markan and another electrician, Mr Suter, in about April 2007 before Mr Serra commenced working at the resort;
[5]
2. A report by Mr Serra of tampering with a glass washer in early June 2007 that he says should have alerted the defendant to problems with Mr Markan's conduct sufficient to dismiss him;
[6]
3. A confrontation between Mr Markan and Mr Serra on 29 June 2007;
[7]
4. Problems with password protection to computers at the Resort's power station between 30 June 2007 and 2 July 2007 which, it is said, Mr Gannon, a supervisor employed by the defendant, should have caused another employee to investigate rather than Mr Serra because of a suspicion that Mr Markan had caused the problems and was antagonistic towards Mr Serra. These problems coincided with problems related to the supply of gas to the generators in the power station;
[8]
5. An incident where Mr Markan left a handwritten note on 4 July 2007 saying "have blackie fix these", referring to some jobs to be performed by Mr Serra. There was then a meeting on 7 July 2007 between Mr Peter Gannon, Mr Garry Tullett, two supervisors employed by the defendant, and Mr Markan where it is alleged Mr Gannon did not appropriately discipline Mr Markan in respect of the note;
[9]
6. An occasion when Mr Serra provided passwords he had discovered for the computers to Mr Gannon on 10 July 2007 when they were changed but not provided to Mr Markan. This is said to have evidenced a failure by the employer to take reasonable care of Mr Serra because of the antagonism of Mr Markan towards him.
[10]
[4] Before I discuss the legal effect of those events it will be useful to set out some of the background detail.
[11]
[5] Mr Serra trained as an electrical mechanic in Lourenço Marques in what was then Portugal and is now Mozambique. He has worked since 1972 as an electrical mechanical engineer including work on many systems such as that set up at Couran Cove. His previous history had included a period of military service in the Portuguese Army and for the South African Army in Angola, partly as a member of a counter-terrorist unit. He struck me as a man experienced in his trade and capable of coping with the normal range of likely fellow workers.
[12]
[6] Mr Clint Suter was an electrician who worked at the Resort for about three months early in 2007 before Mr Serra began work at Couran Cove. He gave evidence that he left work because he could not continue to work with Mr Markan. His evidence was that Mr Markan was, generally, angry and difficult to deal with. He described in particular an incident on a tennis court at the resort when he and Mr Markan disagreed about the approach to a job they had to perform. Mr Markan began to get agitated and started to use obscenities towards him, such as calling him a "dickhead" and a "useless prick" loudly, shortly after Mr Suter said he had described Mr Markan as a "dickhead" under his breath in circumstances where Mr Markan might have heard it.
[13]
[7] Mr Suter then went off to Mr Peter Gannon's office, told him about the incident on the tennis court, that he could not continue to work with Mr Markan and that he proposed to finish his weekend shift and then leave his job. He told Mr Gannon that Mr Markan also used to criticise his ability as an electrician and that he had the possibility of another job for more money which would not be so likely to require weekend work.
[14]
[8] Mr Gannon gave evidence that he had been the director of property operations at the defendant's Resort since late 2004. He said that the discussion he had with Mr Suter about his leaving the defendant included a discussion where Mr Suter said Mr Markan questioned his technical ability and he was not particularly happy working with him. He could not recall any complaint of a physical threat being made to Mr Suter by Mr Markan but recalled that Mr Suter had said that he had found another job that was more suitable and that he was not comfortable working at the defendant's resort.
[15]
[9] He was cross-examined about earlier statements he had made in which he said that Mr Suter had left the defendant's employment because of his inability to work with Mr Markan with the reasons being given including a perceived intolerance and verbal denigration of Mr Suter's ability as an electrician. His view at the time was that the dispute between the two men was not one-sided and that Mr Suter may not have been as proficient at his trade as Mr Markan but he said that he spoke to Mr Markan about his attitude and the fact that he needed to give the other electricians help and not denigrate them.
[16]
[10] Another electrician had also left but the reasons he gave were that he did not wish to live on site and his personal situation. Mr Gannon was not aware of problems between that electrician and Mr Markan. There were inconsistencies among the three statements Mr Gannon had made including a statement in one dated 6 January 2009 that Mr Suter did not disclose to him any problems with Mr Markan, something that he accepted was incorrect.
[17]
[11] He also said that there was a high turnover of employment of electricians at the resort because many would go to the mines for better pay. He agreed that Mr Markan's staying at the resort was good for continuity and said that he was competent with computers and electronics but not particularly knowledgeable about the running of the power station.
[18]
[12] My view is that this evidence, of itself, would not have justified the defendant in terminating Mr Markan's employment. It simply shows that Mr Markan may have had a difficult personality and was someone with whom another employee was not compatible at a personal level but that would not have been a proper reason for terminating his employment.
[19]
[13] When Mr Serra commenced work on 21 May 2007 the intention was that he follow Mr Markan around for a week or more until he became acquainted with the island's electrical systems which included a power station. He only worked with Mr Markan for a little over two days. At the beginning of the third day an episode occurred in conjunction with a problem with the fibre optic communication system on the island. Mr Serra suggested a few things to Mr Markan, received no answer, and Mr Markan then stormed out with Mr Serra following him to his van.
[20]
[14] Mr Markan took off at full speed with Mr Serra in the van going at up to 80 kms per hour in a 5 km per hour area including travelling over a bump in the road which caused the van to become airborne and to throw tools in the van around in it. He drove in a similar fashion on the way back to the maintenance department and saw Mr Markan go straight to the office of one of their supervisors, Mr Tullett. He later told Mr Tullett of what had happened on the drive with Mr Markan in what he described as a "sanitised manner" after which he was allocated a buggy to get himself around and he ceased going around with Mr Markan. By that stage Mr Serra had also encountered difficulty in communicating with Mr Markan as suggestions or questions by him would normally be met with silence or very few words. Mr Markan and he worked separate shifts apart from Fridays and they did not spend time together working. Mr Serra lived in Runaway Bay, off the island, while Mr Markan lived on the island.
[21]
[15] During the period he worked on the island he said there was a series of problems with the gas supply to the power station which he tried to solve partly by dealing with problems in the computer software controlling the power stations and partly by examining issues related to the gas supply, gas being the fuel for six of the seven different generators in the power station.
[22]
[16] On the third or fourth day after he commenced work he said he discovered that to access the software controlling the power station he required a password. Until then, to his knowledge, no password had been required. He said he spoke to Mr Gannon and suggested that the operating system should change from Windows NT to Windows 2000. Mr Gannon agreed with him and allowed him to take the computer to the mainland to a specialist who upgraded the operating system software overnight. Mr Serra brought the computer back the next morning and installed it back in the power station. Mr Markan came in when he was doing that and asked him aggressively why he had changed the operating system. Mr Serra told Mr Markan that he had no alternative at which Mr Markan stormed out of the power station. He reported that event to Mr Gannon who informed him that Mr Markan and he had had a lively discussion about the topic earlier. The installation of the new operating system occurred between 24 and 25 May 2007. Before then he had made attempts to discover what the password was but that did not include asking Mr Markan. It seems likely that he and Mr Markan were by then not on speaking terms.
[23]
[17] After the change of the software Mr Gannon arranged a meeting at the power station with Mr Markan and Mr Serra. Mr Serra said at the meeting that interference from the control side of the system running the power station, which was known as a SCADA system, had occurred. Mr Markan said that that was rubbish and told Mr Serra that he had no idea what was going on. Mr Serra said to him that it was happening on his watch and if he could not solve the problems he would resign.
[24]
[18] Mr Serra said that the problems associated with the running of the computerised system suggested to him that somebody else appeared to have taken over the controls as generators were starting when they were not supposed to. At the meeting he told Mr Gannon that they should run the generators on manual, monitoring them through their pagers in an attempt to discover what the problems were. He said that Mr Markan stormed off from that meeting and did not return.
[25]
[19] Mr Serra said he noticed problems in the operation of the power station which he tried to solve by checking the computers, the gas supply and the log files. He could not find a particular reason why the problems were occurring but assumed that there was some interference occurring. He was not able to access the computer log files and was told that they had been relocated to the engineering computer to save space on the power supply computer and to assist it to run more quickly. At a later stage when he gained access to the log files he discovered that they had password protection. He was able to crack the password and access them, having obtained permission to do so from Mr Gannon.
[26]
[20] Mr Tullett said he had no problem communicating with Mr Markan although he liked to work by himself. Nor did he observe others having a problem communicating with him. The performance appraisals Mr Tullett conducted of Mr Markan referred to a slight communication problem. He said that he was a bit of a loner and kept to himself and that his accent made him a bit hard to understand although it did not sound as if it were a serious problem. The performance appraisal also referred to some "work practice issues" but Mr Tullett could not recall what they were. He agreed that Mr Markan gave the impression that he valued his own ability highly.
[27]
[21] That overview provides some context for the other events that occurred that the plaintiff says should have resulted in Mr Markan's dismissal, or a reprimand or counselling.
[28]
[22] On 3 June 2007, a Sunday, Mr Serra was given a job by Mr Tullett to repair a glass washer in the main restaurant for the resort. When he inspected the glass washer on the same day he said that he suffered an electric shock which he discovered was caused because an earth wire had been removed and connected into a live wire leaving one end detached from the earth. He said that if the wire that had been left loose had touched the cover of the machine it could have electrocuted someone. As it was he said he suffered a severe shock but was able to use a technique developed from his experience as an electrician to remove himself from the electricity supply.
[29]
[23] A lady in the restaurant told him that the machine had worked well until some days before when a man from maintenance worked on it. She described the man as being blond, tall, with a heavy accent that sounded like German which Mr Serra said was a description of Mr Markan.
[30]
[24] He told another co-worker, Peter Nienartowicz, who was a maintenance handyman what had happened and said that he was sure it was done on purpose by a person who looked like Mr Markan. Mr Nienartowicz suggested that he report the matter to Mr Gannon or Mr Tullett. He said he wrote on the job sheet that he had been given to work on the glass washer that it had been tampered with and the wiring modified from the original manufacturing specifications. He also said that he wrote on the document what had happened was illegal and hazardous and that a full report would be forwarded to Peter Gannon in the next 24 hours. He said he wrote that on the sheet before putting it back in the finished jobs folder.
[31]
[25] Ms Signorini, who worked in the defendant's office at the time but who had since moved to another employer, established that what she typed into the defendant's computer records in respect of the report by Mr Serra of his work on the glass washer was simply "this glass washer had been tampered and wiring modified from the original manufacture specs". She said that, if the report she had received from him had included the further words which Mr Serra had on his version then her invariable practice would have been to have included them in the information she transferred to the computer. The original or green report document seems likely to have been placed into a waste paper bin for recycling. The extra words on Mr Serra's photocopy of what he said he handed in, which became exhibit 8, were:
[32]
Full report will be forward [sic] to Peter Gannon in the next 24 hours."
[33]
[26] Mr Serra agreed in cross-examination that the print for these words appeared to be heavier than the first sentence. It was suggested to him that that was because it was done at a different time using a different biro. He said, however, that it simply reflected the emphasis he wished to place on the significance of what had happened. In her submissions Ms Anderson pointed out that his evidence was that he had written the complete message and taken a photocopy before he left the office, knowing that Ms Signorini had the original so that it was unlikely that he would have seen any sense in adding the extra words to his copy in the future.
[34]
[27] Ms Signorini could not recall any meeting at the office which she shared with Mr Tullett which was adjacent to Mr Gannon's office where Mr Serra spoke about the rewiring of the glass washer or of suffering a shock from it. She said that if she had received a note either of the nature of the one that she recorded alleging tampering or one which included the whole of the handwritten annotation shown on Mr Serra's version, a copy of which became exhibit 6 where Mr Serra's original was exhibit 8, she would have brought it to Mr Gannon's attention.
[35]
[28] Mr Serra said he was on a day off after that event and, when he returned, attended a meeting with Mr Gannon and Mr Tullett with Ms Signorini also present on Tuesday 5 June 2007. He said that he could not say who tampered with the glass washing machine but said that the woman in the restaurant described the man who had previously worked on it as someone who fitted the description of Mr Markan. After that he said that Mr Gannon looked at Mr Tullett, there was a period of silence and Mr Serra left.
[36]
[29] Mr Gannon said, however, that exhibit 6 had only been brought to his attention recently, at the time of the first listed hearing date for the trial around 23 February 2011. He could not recall any meeting with Mr Serra where Mr Serra raised the issue of the repair of the glass washer or said that he had suffered a shock from its condition. He said in cross-examination that he would not have expected Ms Signorini to have referred him to the passage in her report dealing with the allegations of tampering with the glass washer as he said it did not necessarily give him cause for alarm. He said that he had seen things tampered with or modified several times before although he agreed that it was not a normal course of events.
[37]
[30] He said that the allegation was not referred to him by Ms Signorini. If it had contained the words alleging illegality in exhibits 6 and 8 he agreed that Ms Signorini should have referred it to him. He denied that Mr Serra spoke to him about the glass washer incident.
[38]
[31] Mr Tullett's evidence was to the same effect as that of Mr Gannon and Ms Signorini in respect of the glass washer incident. He had no memory of it. If he had seen the message on exhibit 6 he said he would have thought it very unusual and would have wanted to know more about it and would have expected Ms Signorini to raise the message with him. Similarly, if he had seen the shorter form of the message in exhibit 11, what Ms Signorini typed into the computer, he said that he would have wanted to investigate the allegation of tampering and to find out what had occurred. He would have expected the electrician to make the machine safe and notify him.
[39]
[32] He agreed that it was very serious if an electrician had made something unsafe and that the electrician would be likely to be terminated and unable to remain on the island if that had occurred, although it would have been the Human Relations Manager's or the General Manager's role to determine that issue. He said he would have given a recommendation and have notified the Electrical Board too if he had discovered evidence of an electrician tampering with equipment. He said that if there had been evidence of that conduct by Mr Markan he would have been escorted to the ferry and not allowed back onto the island.
[40]
[33] In cross-examination it became apparent that Mr Serra had not told his solicitors before 15 February 2011 about the incident involving the glass washer. Nor had he produced the document reporting on the incident to his solicitors earlier. Nor had he told either his barrister or his solicitor about his meeting with Mr Gannon and Mr Tullett and Ms Signorini on that topic until they were walking to court on 23 February 2011 for the original proposed commencement of his trial. That evidence came from an affidavit sworn for the purpose of obtaining leave to amend his statement of claim.. The trial did not proceed on that day because of the need to make amendments to the pleadings to cover the factual issues related to the problem with the glass washer and the problems with the operation of the power station which were raised for the first time in Ms Anderson's opening of his case on that day. That is what led to the adjournment of the trial.
[41]
[34] His failure to instruct his solicitors about the incident or to produce the document to them until such a late stage struck me as bizarre. Mr Serra also said, to my mind unconvincingly, that he had not remembered the meeting with Mr Gannon, Mr Tullett and Ms Signorini until he was halfway on the way to court after leaving his barrister's chambers that morning. He agreed in cross-examination that he did not report the incident involving the glass washer to electrical authorities although he conceded that as an electrician he should have done that. His explanation in re-examination for failing to do that was because he did not want to cause waves at his workplace and thought that it could be dealt with internally.
[42]
[35] There was no obvious motive for Mr Gannon, Mr Tullett or Ms Signorini to lie about the events. These matters caused real problems for Mr Serra's credibility generally and particularly in respect of this incident. Mr Morton, the defence counsel, conceded generously that they may be problems more of reliability than credibility but this, and other evidence to which I shall refer, made me sceptical of the truth or reliability of significant parts of the plaintiff's story. That may be because in trying to recall his memory became confused and he reconstructed events. He was also suspicious of Mr Markan, no doubt because of the way he had been treated by him, and that may have preyed on his mind and encouraged him to reinterpret events that happened before the attack on him on 13 July 2007.
[43]
[36] There are also curious features associated with this episode from the defendant's side. None of its relevant witnesses could recall any meeting with Mr Serra about the topic and that amnesia, if it were truly that, seemed quite genuine to me. But each of them conceded in some form that the use of the word "tampered" in the report typed by Ms Signorini should have alerted them to make some further investigation as to what had happened. Mr Gannon's view was that the word did not necessarily carry a sinister connotation, a view I share, but it can have such a meaning. One can readily understand that its use could provoke further inquiry but none occurred on the evidence for the defendant.
[44]
[37] I am not satisfied on this second hand evidence about who may have been working on the glass washer, however, that an event happened implicating Mr Markan in a deliberate attempt to electrocute Mr Serra or to render the glass washer unsafe. Nor am I satisfied that anything was said to the defendant's supervisors from which they could have drawn such a conclusion. If it had been it would have been so startling as to demand an immediate reaction. None of the defendant's witnesses could recall such an allegation and their evidence seemed persuasive to me. Ms Signorini, in particular, no longer worked for the defendant and had nothing to gain by falsifying her evidence. Her evidence that she could not recall a meeting of the type described by Mr Serra struck me as convincing.
[45]
[38] Had I been satisfied that Mr Markan had deliberately sabotaged the glass washer and that the defendant had been advised of such an event implicating Mr Markan then there would have been a strong case that Mr Markan's behaviour should have been investigated with the likely result that his employment should have been terminated at that stage. It would be wrong, however, to reach such a conclusion on evidence as unreliable as this. Nor does the fact that there was no investigation of the report in exhibit 11 of anonymous tampering mean that, if there had been an investigation, it would have revealed serious wrongdoing by Mr Markan.
[46]
Problems with password protection of the power station computers
[47]
[39] Mr Serra said that the log files on the computers at the power station were removed regularly. He said he told Mr Gannon before 2 July 2007 that the log files were being removed on purpose and that he could not access them to assess why the problems were occurring at the station. Mr Gannon explained to him that Mr Markan had said that the files were taking too much space on the power station computer and had put them on the engineering computer but he said that Mr Gannon did not explain why they had become encrypted.
[48]
[40] He did not get access to those log files. He thought that the control systems for the power station were being interfered with because he would lose control as if an overriding computer system called the SCADA system had had a mind of its own. He was not speaking to Mr Markan at the time and was not able to ascertain whether there had been any problems earlier with the computer systems.
[49]
[41] On some occasions he had to resort to changing the operation of the power station generators to manual rather than the automatic computer driven control that normally existed. He came to believe that there had been tampering with a gas valve on the outside of the power station and used Sellotape on the valve to assist him to determine whether there had been any tampering or shifting of the valve which may have contributed to the problem. He said that he had marked the nuts on the gas supply regulators with Sellotape on or about six occasions but agreed that it was within Mr Markan's responsibilities to adjust those regulators if it were to be done for the proper purpose of regulating the amount of gas going into the power station. He did not report seeing Mr Markan fiddling with the regulators and says that he was not told that the wrong size gas sleeves were put into them. He would have expected repeated issues with the gas had such wrong sized sleeves been used and said that that did not happen.
[50]
[42] In a notable passage of his cross-examination, however, he added to that evidence that he had seen Mr Markan fiddling with the gas pressure regulators. That was not evidence he had given in his examination in chief. He asserted that he had previously told his lawyers about it but it was an important omission from his evidence in chief if that truly had been done. In re-examination he said that he did not report that observation of Mr Markan fiddling with the gas regulators to anyone else on the island.
[51]
[43] He was also asked questions in cross-examination about whether the computers could control the gas supply to the power station and said that they could through programmable logic controllers communicating with the SCADA system. He agreed that the power station would shut down if the gas supply was turned down. He was not aware that two grey regulators attached to the gas lines into the power station had been replaced nor whether it was about then that the problems with the power supply began.
[52]
[44] It was suggested to him that the operating system on the power supply computers changing from Windows NT to Windows 2000 had nothing to do with a password but rather was required because Windows NT had failed as a system on the computer leading to a Mr Gardner replacing the operating system.
[53]
[45] Mr Gardner gave evidence that he installed new system software on a Couran Cove Resort power station computer brought to him on the evening of 24 May 2007. He could not remember that there was a password issue related to the problem requiring him to reinstall the system software but believed that the computer would not start. He said that the computers used in the power station do not control the pressure of the gas supply and that, if generators go down, that could not be caused by the use of computers, remote or otherwise. He also had examined the power station's diary and could find nothing that indicated in it that any person was hacking into the system remotely.
[54]
[46] He agreed that if gas pressure fluctuated it would affect the generators. He also said that if a failure appeared on a control panel at the power station and not on the personal computer used as a window into the power station's control systems that could mean that there was a communications failure between one control system and another along a series of connections within the system between programmable logic controllers and computers. He expected that those symptoms could be the result of an operating system problem and would have nothing to do with gas pressure.
[55]
[47] To his knowledge the log files kept about the operations of the power station did not record remote logins. He placed no encrypted passwords on the engineering computer. He said that if there were encrypted log files on the engineering computer that would arouse his curiosity as it would be unusual for the operation at the defendant's power station.
[56]
[48] Mr Gannon wrote some notes on the page dated 25 May 2007 in the power station diary relating to setting the generators in manual mode and the main breakers as well. He said that that was necessary because the computer had been taken away to the mainland for servicing by Mr Gardner. By reference to exhibit 12, an exchange of emails between him and Mr Gardner, he said that he believed the power station generators would not have remained in the manual position after Sunday night, 27 May 2007.
[57]
[49] Mr Gannon did not understand that the work done by Mr Gardner related to a password problem on that computer but rather that it could not be started.
[58]
[50] Mr Gannon believed he wrote the diary notes in exhibit 5 on the page for 25 May 2007 about putting the generators into manual on the previous day, 24 May, so that they would be able to be referred to by people at the power station on 25 May. The computer was away overnight which required the generators to be turned to manual but he may have added later notes on that page on 25 May dealing with the further work to be done by Mr Gardner once the computer had been returned.
[59]
[51] He did not recall any password problems associated with that computer at the time or a meeting on 25 May 2007 with Mr Serra and Mr Markan at the power station nor Mr Markan saying words to the effect that "this is rubbish".
[60]
[52] He was also asked about entries in the diary concerning problems with the displays and lights in the power station on a variety of days. He gave evidence about the response to messages to pagers automatically generated from the power station and how they were dealt with. He had no need to look at log files for those problems as there was an alarm register on the computer screen in the power station and he believed that generator no. 6 was the only generator that would create an alarm about gas pressure.
[61]
[53] He believed that the regulators controlling the entry of gas into the power station were serviced during the period May to July 2007 and had been informed that a wrong spring had been put into them. It seems that his reference to a wrong spring was the equivalent of other witnesses' references to sleeves inserted into the regulators.
[62]
[54] He could not recall those regulators having been serviced before and had been told by Mr Tullett that he had closed the bypass valve and subsequently reopened it. He did not know when the proper springs or sleeves were placed in the regulators. He did not necessarily expect that there would be consistent problems but possibly expected that he would see a definite beginning and end to the problems if it was caused by the incorrect springs. He pointed out, however, that variation in demand added another issue affecting the potential problems within the power station.
[63]
[55] He was taken to a number of other instances where there were variations in gas pressure including on 23 June 2007 and a synchronisation issue on 29 June 2007 when it was suggested to him that he had become frustrated by another unexplained failure at the power station, something with which he did not agree. That was an occasion when there was a record of gas pressure reaching 70 kilopascals which he could not explain.
[64]
[56] On 1 July 2007 there was an entry by Mr Serra about generator no. 2's failure to synchronise which he said might be explained by the need to replace an instrument called a synchroscope. He said it was not unusual to have problems or failures at the power station which was why maintenance staff were required but that once they had rectified the regulators and the bypass line the problems seemed to go away.
[65]
[57] Mr Serra also gave evidence that around 24 June 2007 he told Mr Tullett that he had discovered a relationship between the gas pressures and the power station's problems and asked him to contact the gas suppliers. He said that on 26 June he checked the pressure mark he had made with Sellotape and found that there had been a change to the valve. He did not know what had caused it but it was put to him in cross-examination that, about that time, it had been discovered that the problems with the generators were caused by the previous fitting of injection sleeves that were the wrong size and the closing of a bypass line for gas into the power station. He denied knowing that the injector sleeves were too small or that Mr Tullett had shut down the bypass valve. He also denied that Mr Tullett said to him that the solution to the problem came with the replacement of the injector sleeves with ones of the right size and the reopening of the bypass valve.
[66]
[58] He also asserted that he was convinced that Mr Markan caused a problem on 23 June to make him, Mr Serra, look bad even though Mr Serra was not then on duty and had not been on duty between 22 June 2007 and 24 June 2007.
[67]
[59] Mr Gannon's evidence was that during 2007 the power station lost power for no apparent reason on several occasions. He established that the problem was that the regulators had been serviced incorrectly by the fitting of parts of the wrong size into the regulator and the closing of a bypass valve shown in exhibit 7. He said that that led to fluctuations in the gas supply but that after those matters were rectified there were no problems with the gas supply.
[68]
[60] Mr Tullett said Elgas, the supplier of gas for the power station, changed the two regulators there after a gas leak. He said that that was before the problems with the gas supply in 2007. At the time he closed the bypass line with a technician from Elgas. He had not previously opened or closed it. Later he said Elgas changed the regulators by using a different sized injector to replace ones that had been smaller than the originals. He believed that occurred on about 25 June 2007. On that occasion he also opened the bypass line again and said that, although the generators took some time to settle down with fine tuning, the problems related to the gas supply ceased to be of major concern after that. Mr Tullett did not discuss with Mr Serra the problems related to the injector sleeves or the bypass valves leading into the power station.
[69]
[61] The evidence led on this issue for Mr Serra was apparently intended to suggest that there was a case that Mr Markan may have been sabotaging the power station remotely. It seems to me, however, that the problems were much more likely to have been caused by the use of the wrong size sleeves and that these facts did not give rise to any occasion to discipline Mr Markan or to dismiss him. There were communication problems between the two men which may have contributed to the problem but there is no acceptable evidence that Mr Markan was trying to undermine Mr Serra's position by sabotaging the power station.
[70]
Confrontation between Mr Markan and Mr Serra on 29 June 2007
[71]
[62] On 29 June 2007 Mr Serra had a serious encounter with Mr Markan at a meeting of a number of employees at a workshop. Mr Markan accused him of not having done a job which Mr Serra said he knew nothing about. Mr Markan abused him. Mr Serra shouted back and they had a face to face confrontation which Mr Tullett helped to break up. Mr Serra then screamed at everybody present to go outside and started swearing at Mr Markan who picked up pliers after which they advanced on each other but then Mr Markan went outside saying "shut up" to him or words to that effect. Mr Serra agreed that he went as if to head butt Mr Markan. He also said that Mr Tullett then said to him "this guy's like this. He does this with everyone ...".
[72]
[63] Mr Serra told Mr Tullett that he would not dwell on it as he intended to make the job work. He also said that he did not wish to have Mr Markan displaced at that stage because he needed someone to look after the systems when he was not there. He also conceded, having initially denied it, that he had told Mr Markan that he did not hold grudges at the end of the confrontation. That passage occurred in a statement he gave to police on 16 July 2007 which formed the basis of his evidence for the criminal prosecution of Mr Markan. He also agreed that he told Mr Tullett at the time that Mr Markan was a "pussy" and that he would take care of the matter himself.
[73]
[64] Mr Nienartowicz observed the dispute between Mr Serra and Mr Markan in the workshop. He agreed that there was no physical element in the confrontation but said that the looks and intimidation were very threatening. He said that Mr Tullett took no action to separate the two men. He had seen no conduct like that before at Couran Cove in the two and a half years he had worked there but agreed that he had seen similar conduct and words on many occasions particularly when he worked in the country.
[74]
[65] Mr Tullett also gave evidence that he observed the disagreement between Mr Serra and Mr Markan on 29 June 2007. He said it occurred about 9:00 am and that Mr Markan was accusing Mr Serra of being lazy. Mr Tullett stepped in between the two of them and broke up the dispute, telling Mr Markan that he and Mr Gannon handed out the work rather than Mr Markan. He then went outside and spoke to Mr Serra and apologised to him for Mr Markan's behaviour. He said that Mr Serra said that he did not have to apologise and that he would sort it out and that Mr Markan was a "pussy". At the time of the incident on 29 June 2007 he did not see anything like pliers in Mr Markan's hands and could not recall Mr Serra asking the others in the room to go outside while he and Mr Markan spoke. He did not speak to Mr Serra afterwards about the event. He said he mentioned the incident to Mr Gannon straight after it occurred and Mr Gannon did not suggest doing anything further.
[75]
[66] Mr Gannon's evidence differed from that of Mr Tullett as he said he was not aware of the raging argument witnessed by Mr Tullett between Mr Markan and Mr Serra until after the assault by Mr Markan on Mr Serra of 13 July 2007. Nothing he had seen of Mr Markan's behaviour led him to believe that he was going to assault Mr Serra. His evidence was that he saw no need to intervene in the relationship between Mr Serra and Mr Markan or Mr Suter and Mr Markan.
[76]
[67] This event was the most serious encounter between Mr Serra and Mr Markan before the attack on Mr Serra on 13 July. It is difficult to conclude, however, that it amounted to a sackable offence. It was a verbal confrontation that seems to have had some potential for violence. Mr Markan, however, even if he advanced on Mr Serra with pliers in his hands, did not attack him physically and went outside saying "shut up" to him. Mr Serra did not want to take the matter further himself. That sort of disagreement between employees is, no doubt, unpleasant but not behaviour which would, of itself, necessarily lead to dismissal although it may well require more active intervention by management than seems to have occurred in this instance.
[77]
[68] On about 2 July 2007 Mr Serra said he told Mr Gannon that he needed access to the log files to check his theories about what was happening with the power station but said that he was not given access to them. Around that time he showed Mr Gannon some modifications to the engineering computer which, he suspected, because of the use of a particular type of electrical connector, had been modified by Mr Markan. He could not get into that computer because a complex password was needed and sought permission from Mr Gannon to try to crack that password at home. He said that Mr Gannon queried why he would not simply ask Mr Markan for the password. He replied by saying that he did not wish to ask Mr Markan because he would lose the element of surprise, no doubt because he suspected Mr Markan's involvement in the creation of the password. He said that Mr Gannon told him to "go for it" and that he cracked that password about a week or so before he was attacked. He then gave the password to Mr Gannon, he said, about a week before the attack. He did not work with Mr Markan again after that episode until he was attacked on 13 July 2007.
[78]
[69] Mr Gannon agreed that the issue related to password access to the engineering computer arose about one week before the assault on Mr Serra but could not recall Mr Serra showing him any rewiring inside that computer. He suggested to Mr Serra that Mr Markan might have installed a password and said that Mr Serra suggested that he could "crack" the password. Mr Gannon agreed that he could try to do that.
[79]
[70] Mr Gannon was cross-examined about the week beginning 2 July 2007 and a conversation with Mr Serra about his inability to access the data in the engineering computer and his wish to open and inspect the power station log files. That was diarised on 2 July 2007 but he agreed that he could have spoken to Mr Serra on the previous Saturday, 30 June 2007 as Mr Serra was not at work on 2 July 2007.
[80]
[71] Mr Gannon could not recall any conversation with Mr Markan about opening the log files and agreed that the engineering computer had not been password protected before to his knowledge. He assumed that Mr Markan had probably put a password on the computer and that he told Mr Serra to find out what the password was by trying to crack it. He could not recall any conversation where he asked Mr Markan what the password was although he spoke to him about his reasons for moving the log files at an earlier stage before the password was placed on the engineering computer.
[81]
[72] That was still a live issue on 4 July 2007 when Mr Gannon spoke to Mr Markan about the "blackie" note. He agreed that there was clear animosity between Mr Markan and Mr Serra by then but did not raise the issue of the password with Mr Markan nor did he seek to use some other person, such as his information technology staff or Mr Gardner, to try to crack the password. He agreed that there was a problem with Mr Markan's animosity towards Mr Serra by 4 July 2007 and said that he thought it was no more than one would see in any workplace. He did not consider that he would be placing Mr Serra in any possible danger by asking him to crack the password.
[82]
[73] Mr Gannon was not happy, he said, about the existence of the password on the engineering computer but said that it did not give him grave concern and that he hoped to have a harmonious relationship with all of his staff. At that stage he said he was not aware of the confrontation that had already occurred between Mr Serra and Mr Markan on 29 June 2007 although Mr Tullett gave evidence that he had told Mr Gannon briefly about the episode immediately after it occurred. Mr Gannon had no recollection about Mr Tullett telling him that. He said that if he had heard of the incident having taken place he would have counselled them.
[83]
[74] His main thought about Mr Markan placing the password on the engineering computer was that he had put it there to protect the information although he agreed that he had some suspicion of misconduct by Mr Markan.
[84]
[75] Mr Markan left a handwritten note in the office on 4 July 2007 saying "have blackie fix these", referring to some jobs to be performed by Mr Serra. Mr Tullett found it and gave it to Mr Gannon who organised a meeting with Mr Markan on 7 July where Mr Gannon told Mr Markan that they were racist comments and were not to happen ever again. Mr Tullett recalled that Mr Markan shrugged his shoulders. He also said that he had no reason to believe that Mr Markan would assault someone. Mr Gannon said that he told Mr Markan of his displeasure, said that it was not acceptable terminology and that he should try to work together with Mr Serra with mutual respect to which Mr Markan nodded affirmatively.
[85]
[76] Mr Gannon agreed that he did not take any further action in respect of the "blackie" note than the reprimand he delivered to Mr Markan. He did not investigate allegations by Mr Markan made at the time suggesting that Mr Serra was sabotaging the power station as he did not think there was reason to do so. He had no issues with the performance appraisals conducted by Mr Tullett of Mr Markan. He said on another occasion that Mr Markan had been with the defendant at Couran Cove for a number of years and had never attacked anybody on the island before. Mr Tullett agreed in cross-examination that Mr Gannon did not tell Mr Markan what might happen to him if he used racist language about Mr Serra again.
[86]
[77] Mr Gannon also gave evidence in cross-examination about the steps that were required to deal with grievances affecting employees and said that the "blackie" note contravened the defendants' workplace harassment policy but said that he believed that further steps were not warranted at the time than those that he took because of his interpretation of Mr Markan's response, a shrug and a type of smile.
[87]
[78] Mr Serra provided the passwords he had discovered for the computers to Mr Gannon on 10 July 2007. They were then changed but the new passwords were not provided to Mr Markan. The inference I was asked to draw was that this was the event that precipitated the attack by Mr Markan on 13 July. It was said to have evidenced a failure by the employer to take reasonable care of Mr Serra because of the antagonism of Mr Markan towards him. It should have investigated the password issue it was said through other employees or supervisors to avoid the risk that Mr Markan may attack Mr Serra.
[88]
[79] Mr Gannon gave evidence about the probable sequence of events should a complaint be made against Mr Markan and the time period during which it would have been possible to suspend or dismiss him which, he agreed, would depend to a significant extent on what Mr Markan said in response to any allegations against him. When he did assault Mr Serra he was immediately terminated and removed from the resort although Mr Markan then commenced proceedings for unfair dismissal which were settled on 27 September 2007.
[89]
[80] To come back to the resort would have been difficult for Mr Markan if his employment had been suspended or terminated as the defendants' security staff, on what I was told, would not have allowed him to catch the ferry to the resort. There were alternative means of getting to South Stradbroke Island, however, such as by water taxi or by private vessel and there were other establishments on the island and other possibilities of access to the resort. Mr Markan also lived on the island so he would have been likely to return there even if he was not permitted to visit the resort. There were, however, security staff who would be likely to have instructions to prevent such a former employee from coming into the resort. The employees generally also wore uniforms so that outsiders could be distinguished from them reasonably readily.
[90]
[81] Mr Gannon said that the handling of complaints depended also to some extent on the attitude of the complainant to prosecuting the complaint. That depended, of course, on the seriousness of the conduct complained of.
[91]
[82] Mr Watts was an employee of the defendant who knew Mr Markan, had no difficulties with him at work and related to him very well. He had innocently told Mr Markan where Mr Serra was on the day that Mr Serra was attacked and said that he expected that, if Mr Markan had been suspended, he would not be on the island. He had been working at a remote generator site where Mr Serra, he knew, later went to turn off the generator. Mr Markan then turned up and Mr Watts told him that Mr Serra had gone to turn off the generator. Mr Markan must have followed Mr Serra but said nothing to Mr Watts about his intentions.
[92]
[83] The evidence of Mr Serra then established that he was hit by Mr Markan with a solid wooden baton about 40 mm thick over an extended period on perhaps 60 different occasions and then chased by him in a van. Mr Serra's pleas to him to stop assaulting him went unheeded. Mr Markan did say, however: "that will teach you not to mess around with a white man."[1] The assault was so serious that Mr Markan was sentenced to four years' imprisonment after his trial for the offence.
[93]
[84] On this evidence I was invited by the defendant's counsel to make a number of factual findings the most important of which relating to the gas supply and computer password issues were the following:
[94]
1. The computers have nothing to do with the gas supply to the engines.
[95]
2. The likelihood is that in order to increase the gas supply to the engines the installers of Generator 6 left the bypass line open and it remained so, undiscovered, for years afterwards.
[96]
3. About the time the problems with the power station commenced (Tullett 3-92.30) Elgas replaced the two main line regulators.
[97]
4. Unbeknown to the defendant at the time, when Elgas replaced the regulators they did so with injection sleeves which were too small, resulting in reduced gas flow to the engines. (Tullett 3-93.25)
[98]
5. At about the same time Mr Tullett discovered the open bypass line and closed it. The effect was again to reduce the gas supply available to the engines. (Tullett 3-92.5)
[99]
6. This caused insufficient gas supply at peak times with the consequence that the power supply would fluctuate at times of high demand (Tullett 3-95.25) and the engines, and generators, would shut down.
[100]
7. This had nothing to do with any computer (Gardner 2-58.20).
[101]
8. On or about 25 June 2007 the problem with main line regulators was rectified (Tullett 3-94.1-15; exhibit 19). At or about the same time the desirability of leaving the bypass line open was discovered (Tullett 3-94.15)
[102]
9. On or about 24 May 2007 the main power station computer operating system failed.
[103]
10. The plaintiff's case is that this was because a password to access that computer was changed. Mr Morton added that it seemed that the plaintiff's case was that the court should draw the inference that it was Mr Markan who altered it for some nefarious purpose. The defendant's case is that this was because the operating system (then Windows NT) failed.
[104]
11. The plaintiff delivered the computer to Trevor Gardner for correction of the problem.
[105]
12. Mr Gardner replaced the operating system in the computer.
[106]
13. The necessity for the computer to be attended to by Mr Gardner had nothing to do with any password placed on the computer. (Gardner 2-59.30)
[107]
14. If it had been a password problem Mr Gardner could have solved that (Gardner 2-59.38).
[108]
15. Because removal of the main computer, when it was taken to Mr Gardner on the mainland, meant that the generators would not trip in and trip out as normal depending on demand, Mr Gannon set Generator 7 as well as Generators 1, 2 and 3 to manual so that they simply ran and created power. This was done in order to enable the computer to be taken for repairs. It had nothing to do with any fluctuation in the power system. (Gannon 2-82.1)
[109]
[85] Those findings of fact seem to me to be appropriate on the whole of the evidence about the problems associated with the gas flow to the generators. They are more plausible than the theory that Mr Markan was sabotaging operations behind the scenes. They do not, however, extend to the issue related to the passwords for the log files obtained by the defendant after the confrontation between Mr Serra and Mr Markan on 29 June and the creation of the "blackie note" and the discussion about it between 4 July and 7 July.
[110]
[86] The plaintiff's argument was that by then there was a history of antagonism between him and Mr Markan and that the defendant should not have left it to him to decipher and change these passwords but rather that a supervisor should have taken on that role to avoid the potential for further conflict. Ms Anderson's written submissions were to the following effect:
[111]
"Mr Gannon took no steps himself to investigate what must be described as bizarre behaviour. By 2 July Mr Gannon was or should have been aware that Mr Markan was alleged to have been abusive to Clint Suter; rewired a glass washer in a way that could injure a person and was alleged to be illegal; placed passwords on two computers (or one on the defence case) without authorisation or sharing the passwords; moved files vital to Mr Serra's work onto a computer which had been modified and password protected; been aggressive toward Mr Serra in front of Mr Tullett; and been aggressive toward Mr Serra with respect to changing the operating system on the main computer."
[112]
[87] The defendant's argument on those issues was that the plaintiff's "recovered memory" of drawing the glass washer incident to the attention of Mr Gannon and Mr Tullett was no basis for now making a finding of serious dereliction of duty against them. Mr Morton submitted that nothing about Mr Markan's interaction with Mr Suter warranted any particular action by the defendant (certainly no more than Mr Gannon's counselling of Mr Markan after the racist note was found) nor gave any reason to think that Mr Markan was going to assault anyone physically. As to the confrontation of 29 June he submitted that what that evidence shows is that at the time nobody thought Mr Markan's conduct was so serious as to warrant intervention by the employer. The opposite assertion, he argued, has only come about because of reliance upon events occurring afterwards.
[113]
[88] Mr Morton also submitted the evidence revealed that:
[114]
1. the main computer operating system simply failed on or about 24 May 2007;
[115]
2. there was no reason to suspect Mr Markan had anything to do with that;
[116]
3. the problems with the generators at about that time were not caused by any computer problems;
[117]
4. there was no reason to think that those problems were the result of any activity by Mr Markan;
[118]
5. even assuming that Mr Markan was responsible for changing the password on the engineering computer, that gave no reason to think he represented a physical threat to any person.
[119]
[89] His submission about Mr Markan's earlier conduct towards Mr Suter and Mr Serra was that neither individually nor together did it suggest that Mr Markan was likely to assault Mr Serra. He had no history of attacking other employees at the Resort. Nor was he guilty of other conduct warranting his dismissal. The glass washer incident could not be sheeted home to him nor did the evidence establish that he was the cause of the problems with the gas supply to the power station.
[120]
[90] The legal principles relevant to a case such as this were not the subject of real dispute. It involves the application of the ordinary principles of negligence to the employment relationship.
[121]
[91] An example of a case where an employer was found liable for misdeeds of an employee through failure to take proper steps to prevent, for example, the employee from engaging in horse play, which the employer knew he had been engaging in previously is Hudson v Ridge Manufacturing Company Ltd.[2] That decision was discussed by Dunphy J in Antoniak v The Commonwealth[3]:
[122]
"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'.
[123]
But this is a matter of degree. It was conceded in Hudson's Case that if an employer has reason to anticipate misconduct by an employee dangerous to other employees, the employer would be under a duty to the other employees to take reasonable steps to prevent harm arising from it, and that, if reprimands are disregarded the duty ultimately involves dismissal of the vicious or mischievous. If however, a workman, for the first time, indicates himself as possibly a potential danger, an employer should not, except in extraordinary circumstances, be held responsible for subsequent injury to a fellow employee if he did not go to the ultimate remedy immediately upon the first report. An isolated act would need to be extremely grave and of such a nature that repetition were a probability to justify an employer taking the extreme step of dismissal. This is particularly so under modern industrial conditions and in a highly unionized country where the old concepts of an employer's unfettered right to hire and fire have been restricted by changing thoughts and attitudes and by practical restrictions of an industrial character."
[124]
[92] More recent cases such as Gittani Stone Pty Ltd v Pavkovic[4] show how a plaintiff can succeed in such an action where there has been a significant history of misbehaviour by a fellow employee including an assault on the plaintiff, not dealt with appropriately by the defendant, and where the rogue employee later shot the plaintiff when he was leaving work.
[125]
[93] Much, as is often the case, will depend upon the factual circumstances. It is clear, however, that a duty of care arises. The other matters to consider are whether the injury suffered by the plaintiff was foreseeable, whether there was a breach of duty by the defendant and whether any breach caused the injuries complained of.
[126]
[94] In this case Mr Morton submitted that it was not reasonably foreseeable that Mr Markan would assault Mr Serra. He conceded that Mr Markan may have been surly or difficult but pointed out that he had no history of violence when he was working with the defendant. He argued that the fact that he was in a heated argument with Mr Serra on 29 June 2007 should not lead to the conclusion that he posed such a risk and pointed out that Mr Serra was a willing participant in that confrontation.
[127]
[95] It seems to me, however, taking into account the evidence of Mr Nienartowicz, that the episode was sufficient to establish a foreseeable risk that Mr Markan and Mr Serra may have had a future more physical confrontation. That risk was enhanced because of the later "blackie note" episode.
[128]
[96] Mr Markan's writing of that note led to him being reprimanded by his employer; a reprimand which Mr Gannon believed had been taken on board by Mr Markan. His performance appraisals also indicated that he was aware of the defendant's anti-discrimination policy.[5] Should the defendant have taken further steps? If so, would such steps have prevented Mr Markan's attack from occurring?
[129]
[97] Mr Morton's submission was that further counselling or disciplinary proceedings by the defendant against Mr Markan would have been perceived by him as caused by Mr Serra with the result that those steps, far from preventing any harm coming to Mr Serra, would most likely have caused Mr Markan to attack him. He made that submission with the benefit of hindsight, namely that the attack had occurred and pointing out that Mr Serra's evidence in his police statement made for the prosecution of Mr Markan established a racist motive for the attack. It had not been prevented by his familiarity with the defendant's anti-discrimination policy.
[130]
[98] He also pointed to the sustained violence of the attack to argue that counselling would not have prevented it. Mr Serra's pleas to him to stop assaulting him went unheeded. The assault was so serious that Mr Markan was sentenced to four years' imprisonment after his trial for the offence.
[131]
[99] He also submitted that it would have been unreasonable to have dismissed Mr Markan beforehand, arguing that at the highest he had had a verbal disagreement with another tradesman and left an offensive note. His submission was that such behaviour should not lead a reasonable employer to dismiss an employee. He described verbal disagreements and the use of insults in the workplace as not uncommon and pointed out that Hodgson JA said in Gittani Stone Pty Ltd v Pavkovic[6]:
[132]
"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."
[133]
[100] On the evidence that I accept here, it is my view that it would have been unreasonable for the defendant to have dismissed Mr Markan after the mutual dispute of 29 June or the discovery of the note on 4 July, particularly taking into account Mr Markan's apparent acceptance of the reprimand given to him on 7 July 2007. I am also not satisfied that the defendant was wedded to the idea of retaining Mr Markan because of a deficiency of electricians with his skills in the market at the time. He was sacked immediately when the attack occurred on 13 July, as should have occurred, without any consideration of such an issue.
[134]
[101] The plaintiff's argument that the defendant's concurrence in the plaintiff "cracking" the password on the engineering computer files amounted to negligence, taking into account its previous knowledge of Mr Markan's behaviour does not persuade me that there has been a relevant breach of the duty it owed Mr Serra. There was no evidence to link that event clearly with the assault. Mr Morton also submitted that it is only with the benefit of hindsight that it could be suggested that a reasonable employer should have foreseen that Mr Markan's response to the "cracking" and replacement of those passwords would be a physical assault on the plaintiff.[7]
[135]
[102] Even though I have formed the view that an attack by Mr Markan on Mr Serra was foreseeable because of the events of 29 June and the creation of the "blackie note" by Mr Markan, it does not necessarily follow that leaving the investigation of the passwords to Mr Serra was a likely trigger for such an attack. Nor does the evidence go anywhere near establishing that was the reason why Mr Markan attacked him. It may be one of a number of available rational inferences but it is really an exercise in speculation where a number of equally plausible explanations, such as that Mr Markan was a racist, or did not like Mr Serra, or had some degree of possessiveness attaching to his management of the power station separate from the use of the passwords, or was just acting irrationally, are equally likely.
[136]
[103] Accordingly I am not satisfied that the defendant has been shown to have breached the duty it owed to the plaintiff by failing to investigate, reprimand or discipline Mr Markan more than it had already on 7 July 2007. It was also suggested that Mr Markan and Mr Serra could have been required to work separate shifts all the time, something they did most of the time in any event, but that does not seem to me to have been a likely solution to the problem, given that Mr Markan lived on the island and sought out Mr Serra to attack him, even if the defendant should have been satisfied that a significant problem existed.
[137]
[104] The defence submission in respect of causation was that Mr Markan's attack on Mr Serra was irrational and violent, committed in circumstances where he must have realised that it would mean the end of his employment and probably incarceration. It later became apparent that Mr Markan had been jailed before, something of which the defendant was not aware.[8] Mr Morton argued that if jail held no fear for him then extra counselling was hardly going to dissuade him from a violent attack on the plaintiff. He also pointed to the apparent racial motivation for the attack to which I have referred and relied upon the decision of the High Court in Adeels Palace Pty Ltd v Moubarak.[9]
[138]
[105] That was a case where a patron of licensed premises was shot by an assailant. The argument was that the licensee caused the injury by failing to position security personnel at the entrance to the restaurant on the licensed premises to deter or prevent re-entry by the gunman. The Court said that there was no basis in the evidence for concluding that security staff at the entrance to the restaurant would have deterred or prevented the re-entry to the premises of a man armed with a gun where later events showed he was ready and willing to use it on persons unconnected with his evident desire for revenge. Their Honours also pointed out that the conduct of criminal assailants is not necessarily dictated by reason or prudential considerations.[10] Although the court there was concerned with causation arising under the Civil Liability Act 2002 (NSW), Mr Morton relied upon the discussion in respect of common law principles dealing with the "common sense" approach to causation. As Margaret Wilson AJA also pointed out in Lusk v Sapwell[11]:
[139]
"Where the employer's negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm."
[140]
[106] It was in that context that Mr Morton submitted that further counselling was not likely to dissuade Mr Markan from what he did. He also submitted that dismissal of Mr Markan at an earlier stage would not necessarily have prevented the assault. He lived on the island and Mr Morton submitted that a move to dismiss him, with the benefit of hindsight, may well have provoked an assault. He said that Mr Gannon had given evidence of the process required to have been followed and that even when Mr Markan was dismissed for his assault on Mr Serra, he challenged that dismissal.
[141]
[107] It does seem plausible to me that, if Mr Markan had been further disciplined or threatened with dismissal, he may well have attacked Mr Serra in any event. If he had been summarily dismissed there was probably less of a risk that the attack would have happened because of the steps that could have been taken to keep him away from the Resort by its security staff. But the occasion for summary dismissal did not, in my view, arise before 13 July.
[142]
[108] It is also significant that, even when Mr Markan was summarily dismissed on 13 July, he challenged the decision. Since he lived on the island there remained, therefore, a significant risk that he would have found a way to attack Mr Serra even if he had been summarily dismissed.
[143]
[109] On the facts I have found it is my view that it has not been shown either that the defendant breached the duty of care owed to Mr Serra or, if it had dismissed Mr Markan or counselled him more vigorously earlier, that the result would have been any different from that which occurred. Consequently it is my view that the plaintiff has failed to prove his case and that his action should be dismissed with judgment entered for the defendant.
[7] See the discussion by Keane JA of the disadvantages relying upon hindsight in Hegarty v Queensland Ambulance Service[2007] QCA 366 at [49] and Vairy v Wyong Shire Council[2005] HCA 62; (2005) 223 CLR 422 at [60] - [62] and [105].