Employer not liable for employee assault where reasonable segregation measures were taken despite known tensions.

Neutral Citation: [2016] IEHC 354

THE HIGH COURT

[2014 No. 10613 P.]

BETWEEN

ZDENEK HRDLICKA

PLAINTIFF

AND

ANDREW BEST ROOF LIMITED

DEFENDANT

JUDGMENT of Mr. Justice Cross delivered on the 24th day of June, 2016

1. The plaintiff is a carpenter originally from the Czech Republic who arrived in Ireland in September 2005 and is married with three

children.

2. The plaintiff brings these proceedings in negligence against his former employer as a result of a incident that occurred at his then

place of employment on the 9th December, 2013, when he was allegedly assaulted by another employee, Z., of the defendant and

sustained significant injuries including a potential extremely serious injury to his right eye which was hit with a hammer in the affray.

Fortunately the plaintiff sight was not affected in the long term though at one stage this was a real possibility.

3. Separate proceedings have been initiated by the plaintiff against his alleged assailant.

4. The plaintiff claims against his employer not on the basis of vicarious liability but for the failure to supply a safe system and place

of work on the basis that the knew or ought to have known of the danger that would be posed to the plaintiff by Z. and failed to take

any proper steps to avert it.

5. Not surprisingly there is a total conflict of evidence on the facts between the plaintiff and various witnesses who gave evidence on

behalf of the defendant.

6. The plaintiff alleges that some few weeks prior to the index incident he was working at a site in Naas for the defendant when a

colleague Z had an argument with him following which Z. telephoned the plaintiff and threatened to kill him.

7. The plaintiff further alleges that a colleague S. (who was not available to give evidence) rang the principal of the defendant

company, in the plaintiff’s presence, after the incident in Naas to advise him of the threats posed by Z. and of his fears and the fears

of the plaintiff in respect of Z.

8. Nothing happened for some weeks as Z. was away on his annual holidays but on 9th December, 2013, the plaintiff was sent to

work at another site in which the defendant’s were providing carpentry services in Monkstown, Co. Dublin and he was surprised to see

Z. on the site and there was an early morning confrontation with Z. in which the plaintiff alleges Z. repeated his threats. Whereupon

the plaintiff says he telephoned his managing director who was not on site to indicate that the threats were real and he requested to

be taken off the site and to be put to work elsewhere. The managing director declined indicating that they were working on different

floors and that the plaintiff was to telephone the managing director if anything happened.

9. During the day the plaintiff heard Z., who was originally from Georgia, speaking in Russian, a language which the plaintiff

understood and referred to the plaintiff to fellow workers as a “dumb ass” and a “condom”.

10. The plaintiff further alleges that at approximately 5pm at the conclusion of the work day he was going towards his car in the car

park and he passed Z. on the pathway who was with another person and he heard Z. saying to this other person in Russian words to

the effect “look at that condom”. The plaintiff then turned around and words were exchanged and the plaintiff alleges that he was hit

on his head with the pallet which Z. was carrying which caused an injury and a mark to his forehead and then the plaintiff punched Z.

causing him to fall to the ground and Z. picked himself up and reached for a hammer and hit the plaintiff over the eye with the

hammer causing him his injuries.

11. The plaintiff alleges that these injuries were caused, inter alia, by the negligence of the defendant in it’s failure to provide a safe

system of work for the plaintiff in it’s failure to adhered the warnings in the knowledge that Z. posed a threat to the plaintiff and that

an assault or injury to the plaintiff was likely to occur without intervention by the defendant.

12. The plaintiff was the only witness on his behalf, the medical reports having been sensibly agreed by the parties.

13. There is no doubt but that the plaintiff sustained as stated a very nasty injury when he was hit with a hammer on his right eye,

he suffered bruising and swelling a diminution of his visual acuity in his right eye, abrasions, watery eyes, he sustained double vision

by happily he made an excellent recovery and his vision has returned.

14. The defendant’s account of the incident was entirely different. Z. gave evidence to the effect that after an issue of when the

contact in Naas, there was a disagreement as Z. was of the view that the plaintiff was not up to the job that he was required and

had “zero personality” and in particular he was not prepared to take any instructions from Z.

15. The plaintiff did not agree that Z. was in any way his superior but I accept the evidence from the defence that in fact Z. was

placed in a position of acting or temporary foreman while the managing director was not on site. This position was probably not fully

communicated to the plaintiff but is a clear source of misunderstanding between the parties. The plaintiff considered he was equal in

status to Z. and Z. considered he was the plaintiff’s superior.

16. Z. agrees that he had a telephone conversation with the plaintiff after another employee S. seemed to have turned against Z.

and Z. suggested to the plaintiff that he was “telling lies” to S. but Z. denied any threats to the plaintiff. Z. then telephoned his

managing director indicating that the plaintiff was not up to the job and was not taking instructions.

17. On 9th December, Z. said he arrived at Monkstown and he was immediately confronted by the plaintiff who said to him are you

going to smash my face or who is going to smash whose face, it is not clear precisely what was said and Z. said that that

conversation ended with him suggesting that the plaintiff leave him alone. He agrees that he did refer to the plaintiff as a “condom”

during the day but he did not address the plaintiff in those terms and he was not particularly aware that the plaintiff would have

heard him.

18. Z. then says that at the close of the day, he was walking with a colleague, A., as the plaintiff passed by then he did refer to him

in the similar derogatory terms, the plaintiff turned round and spoke to him and then Z. alleges the plaintiff punched Z. a number of

times causing him to fall back. His hoodie was placed by the plaintiff over his head causing Z. to be blinded. He was flaying around

with his hand which may have contained some tools, he fell to the ground dropping his tools and the plaintiff was kicking him and the

hoodie was over his face that he could not see anything and when he was dragged to his feet by his colleagues, the plaintiff was not

anywhere to be seen and Z. could not say how the plaintiff came to have his injuries.

19. The defendant’s case was supported by the evidence of N., who was a Czech employee who knew Z. for some two weeks before

the incident but did not know the plaintiff. He did hear Z. saying to him about the plaintiff in Russian the derogatory language in the

terms previously referred. He says he saw the fight from a distance of about 40m and his first sight was the plaintiff walking towards

Z., Z. had his toolbox on his shoulders. He said the plaintiff reached Z. and he saw that he grabbed Z’s jacket and that the plaintiff

was the first person to strike the other and he pulled Z’s jacket over his head and started kicking Z. when he was on the ground and

Z. from the ground was swinging tools around and the matter only lasted a few seconds. N. agreed that it was only three weeks

previously to his giving evidence that he was reminded of the incident and asked to give a statement.

20. The final witness for the defendant was A., the managing director, who is a Ukrainian who had employed Z. and engaged him as a

probationary foreman. Z. was on the site in Naas towards the end of October 2013, when Nick was there and that on 31st October,

he got a phone call from Z. indicating that Z. was not happy with the plaintiff who would not take instructions from him. That Z. did

not advise him of any threats from anyone to anyone on a physical basis and that he denied getting any call from S.

21. A. then said that Z. went on holidays and on the morning of 9th December, 2013, he got a phone call from the plaintiff from the

site in Monkstown to tell him “that something is going to happen” and that Z. is “not nice” and A. said that Z. would be working at a

different floor and that he could take instructions on the day from the site foreman rather than Z. and that if anything of concern

were to occur, the plaintiff was to give A. a ring.

22. A. denied any previous incidents involving a fight and he indicated he did not consider nor it would occur to him that a fight would

take place.

23. A. also says that on 9th December, he had, in fact, no other site available for work but he did not believe that any physical

incident was going to happen. He was aware that workers frequently utilise foul language to each other on building sites but that

nothing serious comes from that fact.

24. After the incident, both the plaintiff and Z. were let go from the defendant’s employment. What Occurred?

25. It is clear that in Naas, an incident occurred causing “bad blood” between the plaintiff and Z. The incident probably arose from a

misunderstanding as to Z’s position as temporary foreman of which the plaintiff was unaware. In any event, I believe that some

threats were made by Z. to the plaintiff. I should observe that the plaintiff is a larger, taller and heavier person that Z. The plaintiff

said that he has put on weight since the incident but I believe he was always the bigger man.

26. I also find that this incident between the plaintiff and Z. caused some friction to previously good relations between Z. and S. and

that S. did phone A., his managing director, and conveyed concerns to him in the presence of the plaintiff. I fully accept that A. now

has no recollection of that telephone conversation and probably did not think that anything unusual was being told to him.

27. I also find that on the morning of 9th December, there was a further confrontation between the plaintiff and Z. The nature of the

confrontation suggests to me that the plaintiff was correct that some threats were being made. I do not see if the confrontation was

merely about issues of authority that the plaintiff would have rung A. and as A. confirmed, indicated to him that something bad was

going to happen.

28. In relation to the assault itself, it is common case that when the plaintiff passed by Z., Z. made a derogatory remark about him to

his fellow worker. This remark caused the plaintiff to turn around and to “square up” to Z. It is unfortunate that Z’s companion did not

attempt to cool matters at the time but I accept the plaintiff’s evidence that Z. did strike the plaintiff on the forehead with his mallet.

This explains the indentation mark on the plaintiff’s forehead. This element of the confrontation was presumably not seen by the

witness N. who was 40m or so away and it was immediately followed by the plaintiff throwing a number of punches at Z. causing him

ultimately to fall to the ground and drop his tools.

29. The witness, N., must be incorrect when he implied that the injury may have occurred when Z. appeared to be on the ground

flaying around with possibly a hammer or something in his hand. I accept the evidence both from Z. and the plaintiff that Z. had his

hammer in his hand at the time when he was still standing up or had raised himself up to his feet. The blow to the plaintiff is unlikely

to have been caused while Z. was on the ground as suggested by N. I also accept that at some stage, in the incident, the plaintiff

had the whole of Z’s jacket over his head so as to temporary blind him.

30. What undoubtedly occurred, however, was that Z. did use a hammer which hit the plaintiff and caused the significant injuries

complained of.

The Law

31. As stated above, this is not an action in assault. I am not judging the rights or wrongs of the plaintiff’s actions vis-à-vis Z. and

Z’s actions vis-à-vis the plaintiff from the point of view to who or what extent was the guilty party. My analysis above, however,

indicates that I believe that the first blow was struck against the plaintiff and that the injury to the plaintiff was caused by a hammer

being wielded in a dangerous manner by Z.

32. This action, however, is an action in tort, not alleging vicarious liability for the actions of Z. but alleging direct negligence as

employer. The defendant, as employer, clearly has a duty of care to the plaintiff to provide a safe system of work and a safe place of

work. If the defendant is or ought to be aware of specific threats to the health and safety of their workers, then the employer has

duty to take reasonable steps to avoid the injury.

33. These propositions are, in no way novel or in no way create new obligations so that the principles as set out in Glencar

Explorations plc v. Mayo County Council (No. 2) [2002] 1 I.R. 84; or in Whelan v. Allied Irish Banks plc [2014] IESC 3, need not

concern us. The issue in relation to liability is what the defendants knew or ought to have known about the likelihood of injury to the

plaintiff and whether they could have reasonably done anything to avoid it.

34. As stated above, I have found that the defendants, through their managing director, A., were advised of previous threats by Z.

to the plaintiff and were further advised on the morning of the incident that these threats had been repeated.

35. In Elmontem v. Nethercross Limited t/a Roganstown Golf and Country Club and Max Usi [2014] IEHC 91, Herbert J. in his

judgment delivered 28th February, 2014, considered the liability of the defendants in the circumstances where the second named

defendant was a head chef of the first named defendant “without warning struck the plaintiff who had remained sitting behind his

desk battering him violently about the face and head with both fists”. Herbert J. rejected the plea on behalf of the plaintiff that the

employer were vicariously liable for the assault by their employee on the plaintiff adopting the test of “close connection” between the

acts complained of and the nature of the plaintiff’s employment as set out by the Supreme Court in O’Keeffe v. Hickey [2009] 2 I.R.

302.

36. Again, as stated the plaintiff in this case is not making any claim based upon vicarious liability.

37. In relation to the direct liability of the employer in the Elmontem case above, Herbert J. accepted liability on the basis that the

employer through its general manager:-

“…was aware that the second defendant had on a previous occasion in a fit of temper caused physical injury to a fellow

employee in the course of their joint employment. I am satisfied that Mr. Brady knew or ought to have known that there

was a very real risk, not just a mere possibility, that this could occur again, if for any reason the second defendant’s

temper became aroused and that this exposed his fellow employees, including the plaintiff, to a risk of physical injury. I

am satisfied that it was reasonably foreseeable that the second defendant was likely to prove a source of danger to

other employees of the first defendant because of his apparently ungovernable temper.”

38. In the Elmontem case above, the previous assault was with another employer but the defendant, Mr. Brady, was aware of that

fact.

39. Herbert J. goes on to say:-

“…the cause of the previous assault was not a personal antipathy between the second defendant and a particular fellow

employee no longer on the scene. The cause was the second defendant losing his temper to an almost maniac level with

a co-worker over some dispute or perceived grievance in the course of their work. A real risk of a recurrence therefore

remained. In my judgment the making of such an assumption would not and did not excuse the employer from taking no

measures whatsoever to prevent a recurrence. The first defendant did not exercise reasonable care and, certainly did

not exercise all due care to put in place measures to prevent or to protect against, such an event. This was not a risk

which could be entirely eliminated, but in my judgment was one which could have been adequately controlled without

grossly disproportionate or expensive measures.”

40. It is in the light of those principles that I examine the plaintiff’s claim against his employer. I find that to be aware that there was

“bad blood” between Z. and the plaintiff is one thing, and the fact that the plaintiff was so concerned about Z’s possible behaviour

that he called his employer on the phone is of greater assistance to the plaintiff in determining whether he can establish liability.

However, the obligation on the employer is to do what is reasonable. I do not find that the failure of the employer to remove the

plaintiff, or Z., from the site in Monkstown (even if there were any other sites available) was a breach of their duty of care to the

plaintiff. The employer was aware that there was “bad blood” between the two workers. They were aware also that frequently on

building sites rough language is used and parties may have intense rivalries but in the absence of any previous physical assaults such

as occurred in the Elmontem case (above), to impose upon the defendants an obligation to segregate in different sites, the plaintiff

and Z. is, in my view, to impose too strict a liability upon the employer. The managing director, A., not unreasonably indicated that Z.

and the plaintiff would be working on different floors, that the plaintiff could take instructions from the foreman on the site rather

than from Z. which seemed to be a source of contention between the plaintiff and Z. and was advised to phone A. in the event of

any difficulty. The defendant, in this case, has not acted unreasonably.

41. Essentially, that regime as established by the defendants worked satisfactorily throughout the day even with Z. making

derogatory comments about the plaintiff until a further comment was made at the end of the day in which the plaintiff foolishly turned

around to Z. rather than ignore it and the incident developed on the lines that I have described above. I hold that the defendant was

not negligent in all the circumstances of the case and though on my findings it appears the plaintiff was the more innocent party in

the assault (without deciding that issue), he is not entitled to succeed as against his employer.