A bus driver, who was attacked and robbed on a toilet break, has been awarded over $100,000 in damages by the Queensland District Court, which found his employer could have ‘materially diminished’ the assault risk by providing open and well-lit employee facilities.
[Full text of this case: Miles v Brisbane City Council [2010] QDC 501 (21 December 2010)]
http://www.austlii.edu.au/au/cases/qld/QDC/2010/501.html
During his shift on the night of 28 June 2006, a Brisbane City Council bus driver stopped his bus at the Balmoral bus stop in Byron Street in order to take a toilet break.
Consistent with his employer’s policy, the driver carried his cashbox with him to the nearby toilet facilities, which were only accessible to Council employees.
On his return, the driver was ambushed and assaulted by an unknown assailant carrying a piece of timber, who jumped from a bush located along a footpath between the bus stop and the toilet facilities. In addition to being robbed of his takings, the driver suffered injuries to his face, arm and shoulder and was taken from the scene by ambulance.
Subsequently, the driver claimed compensation for his personal injuries (including a sequela post-traumatic stress disorder), which he attributed to the negligence of his employer.
Assault risk ‘neither farfetched nor fanciful’
In the Queensland District Court, Justice Richard Jones found that the risk of injury and robbery had been ‘foreseeable’ in the circumstances.
‘It is neither farfetched nor fanciful that a man working alone at night carrying cash takings (as required by his employer) in a relatively remote, poorly lit, and materially overgrown dead-end area might be assaulted,’ his Honour said.
He also accepted that the driver was unable to park his bus any closer than 60 metres from the toilet facilities, that the overgrown nature of the area provided a place for a potential assailant to hide and that the area was one where there was antisocial behaviour, including drug taking and vandalism.
Adequate lighting and open space ‘materially diminish’ risk
As to what reasonably practicable means of addressing the risk were available to the Council, Justice Jones said that the prospects of a robbery occurring at night would have been ‘materially diminished’ by the provision of adequate lighting and a ‘significant’ reduction, through maintenance, of hiding places created by overgrown trees and bushes (regardless of whether some were located on private property) to allow for a more open and safe area surrounding the facilities.
‘[These measures] would have a two-way effect,’ his Honour said.
‘First, it would provide a less attractive venue for any person inclined to commit robbery. Second, in the event that such a person was still inclined to commit a robbery, it provided an environment where the intended victim had much better prospects of observing the assailant earlier rather than later and thereby having the opportunity to take appropriate action.’
Further, his Honour rejected the Council’s argument that such measures were either ‘unprecedented, ‘too high a burden’, or out of its control. Instead, he confirmed that such precautions were reasonable in that costs were ‘not unreasonable’ with regard to the risk and they were only be required at those locations where it was reasonably necessary to provide a safe place of work.
‘Following the assault on the plaintiff, a “Report of Workplace Incident and Investigation” was carried out by the defendant,’ his Honour said.
‘The remedial action identified was to “improve lighting between toilet and bus stop”. In response to that report the defendant carried out, relatively quickly thereafter, works including trimming trees and further lighting.’
‘The defendant’s almost immediate response to the assault, contrary to the submissions made on its behalf show that it did have a sufficient degree of control over clearing and the installation of lighting.’
Employer liable for injuries sustained
The driver submitted that another reasonably practicable means of addressing the risk was the provision of a lockable area on the bus to allow drivers to secure their cashbox within the bus when they had to leave. His Honour was not satisfied that this measure, which involved retrofitting 800 buses ‘in the order of millions of dollars’ would have probably avoided the driver’s injury. However, he conceded that the Council’s bus fleet now provide a secure place for drivers to store their money, and that evidence suggested the assailant knew the driver was carrying a cash box.
Overall, Justice Jones found the defendant liable over the incident and that the breach of its duty of care to the driver was the cause of his injuries.
‘I am satisfied that the evidence establishes that the defendant failed to take measures or adopt means reasonably open to it to protect the plaintiff from the dangers associated with performing his work obligations without unduly impeding his accomplishment of those tasks,’ Justice Jones said.
He ordered the Council to pay the workers $103,733 in damages, which included amounts for general damages, past and future loss of income, superannuation and interest.
