13 August 2018

Poultry company avoids blame for ‘fowl’ play

On 3 August 2018, Inghams Enterprise Pty Ltd (Inghams) successfully appealed a decision by the District Court of Queensland which found the company negligent for failing to protect a female employee from being attacked by an ex-employee whilst returning to her car after her shift. The Queensland Court of Appeal allowed the appeal on the basis the trial judge erred in finding that Inghams’ breach of duty caused the employee’s injury.

Background facts

Kim Yen Tat (Tat) was a shift worker at Inghams’ chicken processing factory at Murarrie in Queensland. Tat suffered significant post-traumatic stress after being attacked by an ex-employee late at night in the factory’s car park. It was alleged her injuries were caused by Ingham’s negligence and she sued her employer for damages pursuant to the Workers Compensation and Rehabilitation Act 2003 (Qld). The relevant provisions in examining the liability issues in the case broadly correspond to sections 9–12 of the Civil Liability Act 2003 (Qld) and are provisions which are largely replicated in civil liability statutes throughout Australia.

On the night of the incident, and prior to the assault, Tat’s attacker had approached three other female workers. He spun various versions of the same story, with the intention of trying to coax those workers into his vehicle. None of those employees felt the man’s behaviour was menacing enough to report it to a security guard who was stationed in an office near the car park.

First instance decision

The primary judge found in favour of Tat on the basis that Inghams breached its duty of care by failing to educate its staff to report suspicious activity in and about the carpark, and by failing to gear its security measures towards addressing the risk of third-party violence to employees. It was either expressed or implied by the judge that each of the following conclusions would have occurred had reasonable steps been taken by Inghams to provide security awareness training to its staff:

  • At least one of the workers involved in the three prior encounters would have been sufficiently concerned about the man’s behaviour that they would have reported it to the security guard
  • The security guard, upon receiving the complaint, would have located the attacker and directed him to leave the car park and
  • The attacker would have complied with the request to leave the premises and, critically, he would not have returned and therefore would not have attacked Tat in the car park.

Tat was awarded damages in the order of $150,000, clear of the requisite refund to WorkCover Queensland.

The appeal

The Court of Appeal allowed the appeal by Inghams.

It was held the evidence presented did not give rise to a reasonable and definite inference in favour of each of the conclusions expressed by the primary judge. For example, there was no evidence to support that the attacker would have complied with the security guard’s direction to leave the car park. Instead, the Court of Appeal held that most of the conclusions reached by the primary judge amounted to mere conjecture about circumstances which may have turned out differently had Inghams implemented security awareness training to its staff. Accordingly, the Court was not satisfied that Inghams’ breach of duty was causative of Tat’s injury.

Inghams was not successful in challenging the primary judge’s finding as to breach of duty. It was argued that events which occurred after the incident were treated as an admission of liability, and the findings erroneously involved the application of hindsight. Both of those contentions were rejected. The appellate court held it was open for the judge to make specific findings about appropriate safety measures when those were supported by the expert evidence. Further, any reference to events which occurred after the incident (such as a warning email sent by Inghams to its shift workers to take care in the car park at night and report suspicious behaviour) was merely an example of the proactive measures Inghams ought to have adopted before the incident.

Conclusion

The decision adds to the growing weight of authority on causation in negligence to cement the place of “but for” in the causation analysis. Whether or not the Civil Liability Act applies, the test provides a useful starting point for determining whether a defendant’s negligence caused or materially contributed to the harm suffered by the plaintiff.

Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182

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