Adam Paul Lusk & Elizabeth Lusk trading as
Clarity by Gerber & Lusk Optometrists v Michelle Sapwell
 QCA 59
Avid readers of legal directions will recall the earlier article
regarding the first instance decision in this matter (see October
2010 addition, pages three and four).
For complete details of the first instance decision readers
should review the earlier article. In short, however:
The plaintiff was employed by the defendants at their
The store was made up of two rooms, that did not have a door
(or similar) separating them
A 70 year old customer, Mr Bart, came into the store and
requested that the plaintiff repair his spectacles. The plaintiff
took the spectacles into the back room to repair them. Unbeknown to
her, Mr Bart followed the plaintiff into the back room, and then
sexually assaulted her
The plaintiff sued the defendants, for civil damages, as a
consequence of the assault
Atkinson J found, at first instance, that the defendants could
have put in place simple and inexpensive measures to prevent the
assault, such as a infra-red security beam and a self-locking door,
and that the defendants were consequently liable for the
The defendants appealed the decision of Atkinson J. The Court of
Appeal handed down its decision on 1 April 2011, with all three
judges allowing the appeal. The leading judgement was provided by
In allowing the appeal, the Court of Appeal noted the
There was no evidence to warrant the first instance finding
that an assault of the type in issue could have occurred, except by
way of an entirely fortuitous and random act, which might have
occurred regardless of the location of the assault. The mental
state of Mr Bart was such that it could not be concluded the
defendants' premises, and the fact that they did not have a
locked door between the two rooms, led to a situation where
advantage could be taken of the plaintiff
Undue focus had been placed, in the first instance decision, on
the circumstances of the assault, rather than on what a reasonable
person would do having regard to the prospects of the risk of
injury. The first instance decision had been based on 'the
benefit of hindsight', which is an inappropriate method of
None of the steps that Atkinson J considered would have
prevented the assault, were practical or would have afforded a
degree of protection to the plaintiff. Further, it had not been
established that it was unreasonable for the defendants not to have
adopted any of these measures
Causation was not established because there was no evidence
that the plaintiff would have used any of the means which Atkinson
J found could have prevented the assault if they were in place.
Specifically, there was no evidence that the plaintiff would have
used a locked door at premises which she believed were safe. It was
also noted that a locked door may have increased the duration and
ferocity of the assault.
Precedent clearly exists to suggest that the 'special
relationship' of employer / employee may mean that an
employer can be found liable (in certain circumstances) for the
criminal act of a third party against an employee.
However, the Court of Appeal decision serves as a reminder that
an employer will not be found to be strictly liable for injuries
sustained by an employee in such circumstances, and liability will
not be established where there is limited or no evidence to suggest
that the employer ought reasonably have done anything more to
prevent the criminal act.
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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