FILE NOTE

Author: Jim Tealby

Date: 12 April 2011 

Re: Lusk & Anor v Sapwell [2011] QCA 59

Lusk & Anor –v- Sapwell [2011] QCA 59

Decision of the Court of Appeal delivered on 1 April 2011.  See our discussion of the primary judgement delivered 15 September 2010 here.

Factual Background

The Plaintiff was employed as an optical technician at Rosalie.  On Tuesday, 18 January 2005, an elderly customer assaulted her.  Criminal charges were laid against the customer however he died prior to hearing.

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

The Primary Judgement

The matter was heard before Justice Atkinson in the Supreme Court of Brisbane in August and she delivered her judgement on 15 September 2010. 

Justice Atkinson held that in order for a risk of injury to be foreseeable it did not have to be probable that a risk of injury would occur.  It was sufficient that the risk was not far-fetched or fanciful.  Justice Atkinson thought it not far-fetched to suggest that a woman working alone in close customer contact was vulnerable to assault, and that a reasonable response to the risk of the assault was relatively inexpensive. 

Accordingly the employer’s failure to adopt the reasonable response represented a breach of the employer’s duty to the Plaintiff and the Defendant was liable.  The Plaintiff was awarded the damages in the sum of $390,558.82.

Discussion

We had some difficulty with the judgement in respect to the obligation it put on an employer to protect its employees against the criminal conduct of a third party.  In our view, 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, and the relationship of employee and employer, by itself, was insufficient. 

However where the employer was aware of a significant risk of criminal conduct it may be liable for failing to take reasonable steps to guard against that conduct. 

In our view there was nothing about the fact situation in Sapwell to have put the employer on notice of a significant risk of criminal conduct.

Court of Appeal Judgement

The matter was heard in the Court of Appeal on 8 March 2011 and the Court, comprising Muir JA, Margaret Wilson AJA and Ann Lyons J, provided their reasons on 1 April 2011.  Muir and Wilson JJ provided the leading judgements, with Justice Lyons concurring with the judgement of Justice Muir.

Justice Muir felt that the primary judge may have focused unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of the employer having regard to the prospect of the risk of injury.  He found that the Appellants were entitled to regard the magnitude of the risk of assault and the probability of its eventuating as singularly slight. 

Justice Muir found that it was not established that it was unreasonable for the Appellants not to have taken any of the precautions identified.  Nor was it shown that the Appellants were in breach of their obligations to take reasonable care to prevent the risk of injury to the Plaintiff and it could not be said that a safe system of work was not provided.  Justice Muir also thought it doubtful that, even if those steps suggested had been taken, an assault would not have occurred.

Justice Muir was also critical of the finding made by the primary Judge that the Plaintiff “appeared to be a generally truthful witness” when evidence showed that in attending a job interview shortly prior to the hearing she professed none of the alleged psychiatric or psychological limitations claimed in the course of the hearing.  For that reason he would also have reduced the future economic loss award.

Justice Wilson agreed with Justice Muir’s analysis of the evidence and his conclusion that the Respondent did not prove that her injury was caused by any breach of duty on the part of the Appellants.

As predicted, the Appeal succeeded.

Tags: Jim