Author: Jim Tealby

Delivered 15 September 2010

The Factual Background

The Plaintiff was employed as an optical technician in a pleasant neighbourhood strip shopping area at Rosalie.   The Plaintiff was often there on her own during working hours which were 10.00am to 6.00pm Tuesday to Friday.  While there were security measures in place to protect the shop overnight, no particular security measures were in place to protect the safety of employees of the shop during the daytime.  Cash of up to about $500.00 or $600.00 was kept on the premises during the day in an unlocked drawer.

On Tuesday 18 January 2005 Mr Bart, a customer of about 70 years of age, entered the shop at around 5.00pm.  The Plaintiff was working on her own.  The optometrist had been in the shop seeing patients but had left at about 4.00pm.  

Mr Bart wanted his glassed fitted.  The Plaintiff went into the back section of the shop to effect the repairs to the glasses.   Mr Bart followed her into the back section of the shop.   He placed his hands on her hips and was gyrating behind her.  He then cupped his hands on her breasts.  She ‘remonstrated’ with him, pushed past him and fled to the reception area of the shop.  A female customer came into the shop and Mr Bart left. 

The Plaintiff reported the incident to the police on the following day.  Criminal charges were laid against Mr Bart.  One psychiatrist in the course of the criminal case provided evidence to the effect that Mr Bart was dementing.  His wife told police he was suffering from a progressive supra nuclear palsy which affected his capacity to control his urge to sexually molest the Plaintiff.

Mr Bart died just days before the criminal matter was due to be heard in the District Court.

The Plaintiff alleged that she suffered psychological injuries as a result of the assault and brought a claim against her employer.  

The Judgement

The matter was heard before Justice Atkinson in the Supreme Court at Brisbane in August and Justice Atkinson delivered judgement on 15 September.

The issue as to whether the employer was negligent was dealt with over paragraphs 68-88 in a Judgement expanding 117 paragraphs.  Much of the judgement is taken up with discussing the Plaintiff’s alleged awareness of childhood sexual abuse.  However in respect to liability, the logic followed in the course of Her Honour’s reasoning was as follows:

• An employer had a duty of care to employees.
• That duty required the Defendants to take reasonable care to avoid the foreseeable risk of injury to the Plaintiff.  If they did not then they were in breach of their duty of care to the Plaintiff.
• The reasonable response to the foreseeable risk depended upon the magnitude of the risk, the degree of probability of occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the Defendant may have. 
• In order to be foreseeable it did not have to be probable that a risk of injury will occur.  It was sufficient that the risk was not farfetched or fanciful.
• It was not farfetched to suggest that a woman working alone in close customer contact, even in an apparently pleasant suburban setting, was vulnerable to assault, particularly if the performance of her duties required her to go to a part of the premises which was not visible to passing traffic and yet was unable to be secured.
• A reasonable response to such a risk depended on weighing up the magnitude of the risk, the degree of probability of its occurrence and the expense difficulty and inconvenience of taking alleviating action. 
• In this instance the cost of purchasing and installing an infra red security beam would have been $300.00 plus GST.  The cost of a self locking door with swipe of pin would have been $1,200.00 plus GST not including the door.
• To fail to install such mechanism to protect an employee in a vulnerable position was a breach of the employer’s duty to her.
• Accordingly the Defendant was liable.

The Plaintiff was awarded damages in the sum of $390,558.82.  That including general damages of $60,000.00, past loss of income of $87,500.00 and future economic loss of $200,000.00.  There was a WorkCover statutory refund of $108,212.92.  So gross damages were $499,771.74.  

The Scope of the Duty

The difficulty we have with Her Honour’s judgement, which is now the subject of an appeal to the Court of Appeal, is the way that she approached the question of the scope of the employer’s duty.

The duty owed by an employer to protect its employees against the criminal conduct of a third party is a difficult matter. 

In the High Court Decision of Modbury Triangle Shopping Centre Pty Ltd –v- Anzil 2000 HCA 61, the High Court grappled with the liability of an occupier of a shopping centre in respect to injuries allegedly sustained to an employee of the video store at that shopping centre when they were assaulted by a group of footpads in the car park after the lights in that car park had been turned off.   In that case Justice Callinan found that foreseeability alone was not enough to have found a duty.  He quoted from a decision of Smith v Leurs [1945] HCA 27 where Dixon J stated

            “It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers.   The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.  There are, however, special relations which are the source of a duty of this nature.   It appears now to be recognised that is incumbent upon a parent who maintains control over a young child to take reasonable care so as to exercise that control as to avoid conduct on his part exposing the person or property of other to unreasonable danger”    

For such a duty to arise there must be something special about the circumstances of the nature of the relationship between the Plaintiff and the Defendant.  The relationship of employee and employer, by itself, is insufficient.

However where the employer is aware of a significant risk of criminal conduct, it may be liable for failing to take reasonable steps to guard against that conduct.  There is nothing about the fact situation in Sapwell to have put the employer on notice of a significant risk of criminal conduct.

For example, in the decision of White –v- Calstores [2006] QCA 535, the Plaintiff was a console operator at a service station and convenience store at Kingston.  The Plaintiff suffered post traumatic stress disorder as a result of an armed robbery undertaken at night.  The Plaintiff succeeded in a damages claim against her employer in the first instance.  The trial judge found the employer negligent.  The Court of Appeal found that the decision of first instance was only intelligible on the basis that the employer had a security guard attending around the clock, rather than on a roving patrol, as was the case.  The Court of Appeal thought a roving patrol a sufficient response to the risk posed in the absence of any evidence to the contrary, and in those circumstances the Claimant failed. 

What Does It Mean?

A natural extension of Her Honour’s reasoning in Sapwell would find all employer’s negligent for the criminal activity of a third party.  In our view, it incorrectly assumes foreseeability is the sole criteria for determining whether a response to the risk of criminal activity is required.  In our view that simply cannot be correct.  Everything is foreseeable in hindsight.  Very little falls outside the scope of being “not far-fetched or fanciful”.

We believe that the appeal will succeed.

Tags: Jim