Written by Peter CarterOctober 14, 2015
A cleaner who claimed to have been attacked “by eight 20-yr-olds” in the car park of a 24 hour McDonald’s in the early hours of the morning in January 2008 has sued the restaurant and his employer for exposing him to the violent episode due to inadequate security.
A major issue in the case was whether Darren Marshall’s duties necessitated his presence in the restaurant car park at Harbour Town on the Gold Coast, after the dining areas were closed to patrons at midnight.
According to his contract cleaning schedule, his duties confined him to the interior of the premises while only the drive-thru facility was in operation until 6:00am. Only then was time – the last hour of his shift – allowed for cleaning rubbish from the car park.
But Marshall claimed the schedule was never observed and that his duties took him into the car park around 2:00am at the same time an acquaintance – at other times described as his girlfriend – showed up with her daughter.
He took – he claimed – the opportunity to have a cigarette and a brief chat with them. After he bade farewell and was heading back into the restaurant, assailants approached his girlfriend’s car and attempted to drag her out by her hair.
There was no question an attack had occurred and that Darren intervened in the altercation to assist his friends. But Judge Helen Bowskill in the District Court at Brisbane, took a poor view of Marshall’s credibility, branding his evidence as “artificial and disingenuous”.
In her view the most probable explanation was that he had left his duties inside the restaurant to go out for “a cigarette and talk to his friend (or girlfriend) Terry. While he was outside, Terry and her daughter became involved in some kind of argument with two people who approached her car, involving mutual acts of aggression, which unfortunately escalated to the point where Marshall was assaulted”.
She accepted a duty was owed to Marshall by McDonald’s and his employer Panther Cleaning – to provide a safe place of work – but that duty did not extend “to control the conduct of others”.
In any event because the probability of someone suffering an injury by that means outside the restaurant was “extremely low” – there was no history of violent incidents or assaults and none of the staff working at nights had any concerns about their safety – there was no special duty to guard against the risk of assault.
As a precautionary measure, the court assessed damages at a total of $63k, well short of the WorkCover refund for time off work payments and medical expenses of nearly $120k.
The court accepted the view of Orthopaedic expert Dr Greg Gillett that any connection between the assault and the claimed aggravation of a right shoulder condition was – because of a two-month delay before reporting the symptoms – “tenuous”.
General damages for a chronic adjustment disorder were assessed in the sum of $25k on the evidence of the psychiatrist John Chalk of a 17% psychiatric impairment.
Marshall’s claim was dismissed and he was ordered to pay his employer’s and McDonald’s legal costs.