NB The decision below has now been appealed. Please see analysis by Scott Cowell here.
Michelle Elizabeth Sapwell v Adam Paul Lusk and Elizabeth Lusk t/as Clarity by Gerber & Lusk Optometrists [2010] QSC 344
Facts
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 face.
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.
Issues
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 safety
- 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 remote'.
Was the employer negligent?
The duty of care
J applied the decision of Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] 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 other:
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 [1980] 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:
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 defendant.
Further, even though the risk (of being sexually assaulted) was unlikely, it was a serious risk 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 shop.
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.
Comment
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.
