Zdenek Hrdlicka v Andrew Best Roof Limited
Published on: 16/08/2016
Article Authors
The main content of this article was provided by the following authors.
The Employment Law Team at CKT
Background
Background
High Court Decision
This article looks at Zdenek Hrdlicka v Andrew Best Roof Limited, a case in which an employee who was assaulted by a colleague issued negligence proceedings (not vicarious liability) against his employer.
Case Name and Reference:Â Zdenek Hrdlicka v Andrew Best Roof Limited [2016] IE HC 354
Court or Tribunal:Â Â High Court
Jurisdiction/Subject Matter: Assault at work – employer negligence.
Date of Judgment:Â Cross J, 24th June 2016
Background
Mr Hrdlicka (“the Plaintiff”) is a carpenter from the Czech Republic who was employed with Andrew Best Roof Limited (“the Defendant”). The Plaintiff alleges he was assaulted by a fellow employee, Z in December 2013. He was hit by a hammer and sustained extremely serious injuries to his right eye, but his sight has not been affected. Separate proceedings were issued by the Plaintiff against the alleged Z.
The Plaintiff has not claimed vicarious liability against his employer, his case was that the employer failed to supply a safe system and place of work, and knew or ought to have known of the danger that would be posed to him by his fellow employee. He alleged that the employer failed to take any steps to prevent or protect him from the assault.
There are two relevant interactions between the Plaintiff and Z, namely:-
1. The Plaintiff, while working on site in Naas in October 2013, alleged he had an argument with Z following which he alleged that Z telephoned and threatened to kill him.
One of the Plaintiff’s colleagues, S, contacted the managing director of the Defendant and notified him of the threats posed by Z, his fears and the fears of the Plaintiff in respect of Z. Nothing further occurred as Z was on annual leave.
2. On 9th December 2013, the Plaintiff attended on site at Monkstown. He had an early morning confrontation with Z and it is alleged that Z threatened him again. The Plaintiff phoned his managing director to tell him and asked to be taken off site. The managing director said that the Plaintiff and Z were on different floors on the site, so he could take his instructions from a different foreman and to telephone him in the event of anything happening.
During the course of the day foul language was used by Z when speaking about the Plaintiff. The Plaintiff heard the things said by Z.
At the end of the day when the Plaintiff was walking towards his car, he passed Z with another colleague and overheard Z stating in Russian “look at that dom”. The Plaintiff turned around and words were exchanged.
The Court ultimately accepted the Plaintiff’s version of events that he was hit on the head with a pallet being carried by Z, resulting in the Plaintiff punching Z to defend himself and knocking Z to the ground. Z picked himself up, grabbed a hammer and hit the Plaintiff over the eye with it.
The facts were, unsurprisingly, disputed by both sides.
Z gave evidence to say that the Plaintiff had thrown the first punch and had pulled Z’s hoodie over his head causing him to be blinded. Z stated that he was flaying around with his hands while he could not see, but does not know how the Plaintiff came to sustain his injuries.
The managing director of the Defendant accepted as follows:-
1. He was aware of the incident on 31st October 2013 but he says he got a phone call from Z to advise that the Plaintiff would not take instructions from him. He did not recall the telephone call from S.
2. He accepts he received a telephone call from the Plaintiff on 9th December 2013, wherein the Plaintiff told him “that something is going to happen” and that he sought to move site. The managing director confirmed that he instructed the Plaintiff that he was working on a different floor and could take instructions from the other site foreman.
3. He was aware that the workers frequently utilised foul language to each other but did not think anything serious came from that fact.
4. Both employees were subsequently let go.
The Law
The Law
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This case alleged direct negligence against the employer.
It is accepted that an employer has a duty of care to protect employees and to provide a safe system of work and a safe place of work. If a Defendant is aware of a specific threat to the health and safety of the worker, then they have a duty to take reasonable steps to avoid the injury.
High Court Decision
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The Court repeatedly confirmed that the Plaintiff’s claim was not based on vicarious liability as one would have expected. Mr Justice Cross reviewed the existing case law in relation to direct liability of employers in similar assault type cases. In applying the principles from those cases, he found as follows:-
1. The Defendant was aware that there was “bad blood” between the Plaintiff and Z.
2. The Defendant was also aware that the Plaintiff was so concerned about Z’s possible behaviour that he had phoned his employer.
3. However, the Court recognised that the obligation on an employer is limited to do what is “reasonable”. The Court found that the Defendant’s failure to remove the Plaintiff (or Z) from the site in Monkstown was not in breach of their duty of care to the Plaintiff.
4. The Defendant was aware of the rough language used and the intense rivalries that may have existed, but at the same time, in the absence of any previous assaults, the Court believed that it would impose “too strict a liability” upon the Defendant so as to penalise them for failing to move the Plaintiff or Z.
5. The Court held that it was reasonable for the employer to have noted that the Plaintiff was working on a different floor to Z, that the Plaintiff could take instructions from a different foreman on site, and that he was told to make contact with the MD in the event of any difficulty.
6. In coming to its conclusion, the Court held that the Defendant employer was not neg-ligent and so the Plaintiff employee was not entitled to succeed as against it.
Legal Review
Legal Review
(a)Â Employers have a duty to ensure a safe system and safe place of work for employees. It is imperative that employers consistently review and update their safety statements and health and safety policies to ensure any new risks presenting are assessed, and systems put in place to protect employees.
(b) If an employer is put on notice of interpersonal difficulties between two employees, measures should be taken to ensure that any risk is limited (or avoided in its entirety) in terms of the employees’ conduct. Communication and management are critical features of this.
(c)Â Lessons can be learned from the case of Elmontem .v. Nethercross Limited trading as Roganstown Golf and Country Club and Max Usi [2014] IE HC 91, where an employee had struck his colleague, who was sitting behind his desk, without warning, and battered him violently about the face and head with both fists.
In that case, the employer was aware that the assailant had previously assaulted a colleague when he was employed with another employer. However, the Defendant was aware of that fact and in the circumstance knew that there was a real risk of recurrence. This was particularly the case when “the cause of the previous assault was not a personal antipathy between the Second Defendant and a particular 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”.
The Court in those circumstances held that it was imperative on an employer to ensure that it exercised all due care to put measures in place to prevent or protect against such an event.
(d)Â If an employer is notified of issues between individual employees, those employees should be reminded of the policies available to them, including the grievance procedure to seek a resolution.
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Disclaimer
The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
This article is correct at 16/08/2016
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