Adam Paul Lusk & Elizabeth Lusk trading as Clarity by Gerber & Lusk Optometrists v Michelle Sapwell [2011] QCA 59

Facts

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 optometrist store
  • 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 plaintiff's injuries.

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 Muir JA.

Decision

In allowing the appeal, the Court of Appeal noted the following:

  • 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 determining liability
  • 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.

Comment

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.