Australia: No knowledge, no liability for employer in sexual assault case

Last Updated: 16 October 2016
Article by Chris Murphy

Polichronis v Teys Australia Food Solutions Pty Ltd [2016] QDC 225

Key Points

  • The Plaintiff was sexually assaulted by a co-worker. To succeed in a damages claim, the Plaintiff must show the employer was on notice that the assailant co-worker had "significant history of misbehaviour".
  • A thorough post-incident investigation is crucial to protect an employer against unfounded allegations at trial.


The Plaintiff was a meatworker who was the victim of a serious sexual assault committed by a co-worker as she was walking from the employer's carpark to its factory. She did not pursue a claim against the assailant but pursued a claim against the employer on the basis that it:

  • Ought to have known the assailant had a propensity to carry out a sexual assault.
  • Failed to respond to the Plaintiff's complaints to her supervisor.
  • Did not enforce a reasonable sexual harassment policy.

The Plaintiff's case was that prior to the assault, the assailant and two other workers regularly committed "indecent/sexual assaults" which included "cupping her bottom, pinching, slapping, staring and similar behaviour".

The Plaintiff called two former co-workers to give evidence, but neither supported the Plaintiff's allegations. The first witness the Plaintiff called said the Plaintiff had told her that the assailant had passed dirty messages to her. Crucially, the witness did not say she had witnessed any inappropriate touching by anyone or that the Plaintiff had complained about such behaviour.

The second witness said he had observed the Plaintiff speaking to the assailant once or twice per day. Despite the witness being engaged in an extra-marital affair with the Plaintiff, he said the Plaintiff had not made any complaints about the assailant's conduct.

The Plaintiff herself gave evidence that she complained to her supervisor about the assailant on several occasions and that the supervisor would tell him three or four times a day to leave her alone.


In addition to the Plaintiff's evidence, her Honour found that:

  • One of the men who had allegedly assaulted the Plaintiff prior to the incident was 17 years of age at the time. He and the Plaintiff had both flirted, and the Plaintiff had touched him on the penis and pushed her bottom into his groin. He had not seen the assailant's alleged behaviour prior to the assault.
  • The other worker who was alleged to have engaged in the pre-assault behaviour did not touch the Plaintiff inappropriately and did not make inappropriate remarks to her.
  • The Plaintiff made no complaints to her supervisor about the assailant's conduct or sexual harassment in the workplace generally.
  • The Plaintiff complained to another worker with whom she was having an extra-marital affair with at the time of the incident about verbal comments made by the assailant but had made it clear that she wanted "to handle him" herself.

Crucially, the employer conducted a thorough investigation immediately following the assault. The Plaintiff's first statement was that the assailant's behaviour prior to the incident was only verbal and that she had not told anyone about it.

Therefore the Plaintiff's case failed as there was no evidence that the employer was on notice that the assailant had a history of misconduct which would alert the employer to the risk of assault.

Medical causation

Dr Nandam's evidence for the Plaintiff was that she had developed Post Traumatic Stress Disorder (PTSD) and cannabis dependence as a result of the incident.

However, her Honour preferred the opinion of Dr Kar who, whilst accepting the Plaintiff would have suffered significant stress as a result of the incident, considered her problems were due to a pre-existing borderline personality disorder that had been aggravated by her longstanding cannabis use.

Her Honour found that Dr Nandam had placed considerable emphasis on matters about which Her Honour did not accept. In particular that:

  • The Plaintiff's marriage broke down as a result of the assault in circumstances where the evidence was that it was likely the Plaintiff was having overlapping extra-marital affairs and that, as a result, her then husband had "kicked her out".
  • The Plaintiff had not returned to work after the assault, when she had actually continued to work for seven months after the incident until her separation from her husband.
  • Dr Nandam had assumed the husband blamed the Plaintiff for the assault despite the medical records showing he was supportive of the Plaintiff.

Lessons Learnt

This case demonstrates that Plaintiffs will continue to face significant difficulty establishing liability against employers for the criminal conduct of co-workers.

The employer's successful defence of this claim was largely due to its prudent decision to conduct a thorough contemporaneous investigation. The Plaintiff's first statement that she had not reported the assailant's lewd comments was fatal to her attempt to allege at trial six years later that the employer was on notice of serious systemic abuse within the workplace.

This case also demonstrates that even where one would expect the Plaintiff would receive significant sympathy, a court will not be afraid to disregard expert medical evidence which is based upon demonstrably untrue assumptions.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Chris Murphy
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions