The Brisbane District Court’s recent decision in Adlington v Domino’s Pizza Enterprises Limited discusses criminal assault in light of whether an employer had a duty of care to protect an employee from criminal behaviour of a third party and if so, whether the breach of such a duty caused the employee’s injuries.
Mr Adlington (Plaintiff) was employed by Domino’s Pizza Enterprises Limited (Defendant) as a pizza delivery driver. Part of Mr Adlington’s role required him to transport the rubbish from the store to the industrial bins by car. Ms Davis was the rostered manager on the evening of the assault and accompanied Mr Adlington when moving the rubbish. Mr Adlington said that he had been assaulted by a group of youths earlier in the evening but had not been injured by that assault. Later in the evening at around 12:30am, Mr Adlington was assaulted by the same group of youths at the rear of the store.
The disputed events
The events which lead to the second assault which occurred whilst the pair were loading the rubbish into their cars was disputed by Mr Adlington and Ms Davis. Mr Adlington gave evidence that one of the youths approached the car and proceeded to tear the rubbish bag open. Mr Adlington said that he pushed the youth’s hand away and that was when the others proceeded to run towards them and started beating him. When Mr Adlington was questioned about why the group had come back and whether it was because he had yelled at the group which caused them to return. Mr Adalington said that he could not recall whether he had yelled at the group. Mr Davis gave evidence that there was yelling back and forwards between each other which lead to one of the youths to return and the remainder of the group to follow.
The Court preferred the evidence of Ms Davis and found that Mr Adlington’s yelling had caused the group to return. ‘The only explanation for them doing so is that they were provoked into returning by the conduct of Mr Adlington.’
Mr Adlington’s claim
Mr Adlington brought proceedings against Domino’s for the recovery of damages for negligence for the injuries he sustained. He alleged that Domino was negligent for failing to recognise the risk of an assault and failing to provide an adequate system of security for Mr Adlington.
As Mr Adlington’s employer, Domino’s had a duty to provide a safe system of work to its employees. Further the Court referred to the findings of Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil where it was held that ‘the duty of an employer can extend to protecting employees from criminal behaviour of third parties. In order to bring a successful action in negligence, Mr Adlington was required to prove that:
- The risk of the assault was reasonably foreseeable;
- Domino’s failed to take reasonable measure to protect Mr Adlington from the risk of an assault; and
- The breach of Domino’s duty of care caused Mr Adlington’s injuries
The court found that there was a foreseeable risk of an assault as Domino’s was on notice of previous criminal acts that had taken place at the store. Domino’s had however provided Mr Adlington with the requisite training in what to do in the event of a robbery and held that this training could have been applied to the current circumstances of being approached by a group of youths. For Mr Adlington to have engaged in an argument with the group, he had not followed the instructions provided for in the training.
The more substantial contention was whether Dominos’ duty to take reasonable care required them to have engaged a security guard to escort workers at closing time. Mr Adlington was required to prove that Domino’s omission to provide such security was unreasonable in the circumstance. The Court considered that Domino’s had sought to protect its employers at closing time by always requiring two employees to be present rather than one. The cost of employing a security escort service would be $45.00 per night but Mr Adlington had failed to demonstrate the ‘economic feasibility’ of Domino’s incurring that expense. Further the previously reported incidents had not resulted in serious injury. Therefore the Court was not satisfied that ‘it was unreasonable for Domino’s not to have engaged a security service at close time.’
In relation to causation, the Court held that there was little doubt that had Mr Adlington not engaged in an argument with the group, that they would not have returned and the assault would not have occurred. Further the Court was of the opinion that a security guard would not have been able to prevent Mr Adlington’s yelling at the youths. Therefore failures of Domino’s had not resulted in Mr Adlington’s injuries. The Court considered that even if Domino’s was partly negligent, Mr Adilngton was responsible to 80% for his sustained injuries.
Mr Adlington’s appeal was therefore dismissed.
The Court acknowledged that the duty of an employer can extent to protecting employees from criminal behaviour of third parties. However it appears that such a claim may only be open to circumstances where the employer’s negligence contributed to the assault to a greater extent than the employee’s own contribution to their injuries.