Michelle Elizabeth Sapwell v Adam Paul Lusk and Elizabeth
Lusk t/as Clarity by Gerber & Lusk Optometrists  QSC
This case involved a 24-year-old woman, Ms Sapwell
('the plaintiff') who was working as an
optical technician in an optometry shop. A 70-year-old customer, Mr
Bart, had come into the shop and requested the plaintiff repair his
spectacles. The plaintiff proceeded to the back workshop and began
to repair them.
Unbeknownst to the plaintiff, Mr Bart had followed her into the
back room. He placed his hands on her hips and started gyrating up
against her also cupping her breasts with his hands. The plaintiff
fled into the reception area when another customer came into the
shop and Mr Bart left the store, turning away so as to hide his
The plaintiff developed a severe psychiatric condition due to
the sexual assault, which caused nightmares, flashbacks and
tendencies for suicide and self-mutilation.
The shop was fitted with security measures enacted at night when
the shop was closed, however, there were no security measures in
place to protect employees when the shop was in operation. The
plaintiff alleged her employer was negligent in failing to enact
measures to take reasonable care to prevent an injury to her which
was reasonably foreseeable.
There was no question the employer owed a duty of care to
provide a safe system of work for the plaintiff, as one of their
employees. The questions before the court were:
Whether the plaintiff's employer breached the duty of care
owed to her as an employee to take reasonable care for her
The extent of the injury to the plaintiff and whether the kind
of injury the plaintiff suffered was reasonably foreseeable
Whether the breach caused the injury and was not 'too
Was the employer negligent? The duty of care
J applied the decision of Modbury Triangle Shopping Centre
Pty Limited v Anzil  HCA 61 which established that an
employer owes an employee a duty to take reasonable care to protect
them from the criminal acts of third parties.
The court reiterated that the duty only arises where there is a
special duty imposed upon certain categories of relationships, such
as pupil and teacher, and employer and employee, which demands a
higher standard of care due to the unique nature of the
relationship and the idea of their power to 'control' the
'The employee's safety is
in the hands of the employer.'
Even though criminal behavior was viewed as 'random and
unpredictable' by the court, the employer still has a duty to
protect their employees from such acts.
The breach of the duty of care
The court applied the test espoused by Wyong Shire Council v
Shirt  HCA 12. The first limb of the test is whether the
risk is reasonably foreseeable and not "far-fetched or
fanciful." The court decided that it was not "far-fetched
or fanciful" that a woman working alone in close customer
contact would be vulnerable to an assault. Further, given she was
engaged in her work duties she was unable to be watchful for her
own safety. Therefore, the risk of injury was reasonably
foreseeable to the defendants.
The second limb enunciated by Wyong is whether it would
have been relatively inexpensive and easy to prevent the risk:
'The reasonable response to
such a risk depends on the weighing up of the magnitude of the
risk, the degree of its probability of occurrence and the expense,
difficulty and inconvenience of taking alleviating
Expert evidence was tendered as to what would have been required
to protect the plaintiff from an unwanted assailant when working
alone in the shop. It was found that all that was required was a
infra-red security beam costing $300 and a self-locking door which
would have cost $1,200. The court decided that neither option would
have caused unreasonable expense or difficultly for the
Further, even though the risk (of being sexually assaulted) was
unlikely, it was a serious risk and
'Ought to be guarded against,
particularly if it can be done relatively easily and
The defence attempted to argue the plaintiff should have moved
her tools out to the front of the shop which would have reduced the
risk of injury. However, the court dismissed the submission on the
basis the work bench and tools were at the back of the shop and at
no time did her employer direct her to use the front of the
The court held that even if the security measures were installed
and the plaintiff did not use them, it was still the employer's
duty to instruct the employee to use them. Accordingly, there still
would have been a breach of the duty of care on the part of the
employer if they implemented security measures but failed to
instruct the plaintiff how to use them.
The case demonstrates the circumstances where an employer may be
held liable for the criminal act of a third party against an
employee. Even if the risk is unlikely, if it is foreseeable and
could have been easily prevented, then the employer will not escape
liability. WorkCover Queensland, on behalf of the employer, is
presently considering whether to appeal this decision.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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