Lusk & Anor v Sapwell  QCA 059
Muir JA, Margaret Wilson AJA and Ann Lyons J
1 April 2011
The claimant worked as an optical technician in a small optometry practice on a relatively busy street in Brisbane. The claimant frequently worked alone in the shop.
On 14 January 2005, a 70 year old customer, who was known to the business and staff as he had attended the shop over a number of years, came into the store to have his glasses adjusted. The customer would usually attend the shop with his wife or son, however on this occasion he was alone.
The worker fitted the glasses to the customers face and then went to the workshop out the back of the store to make the necessary adjustments. The workshop area was behind a wall screened from the main reception area and was generally out of sight to customers. The workshop did not have a lockable door.
The customer followed the worker into the workshop, put his hands on her hips and gyrated his body behind her, before touching her breasts. The worker said something to the customer, pushed him away and fled to the front of the shop. The customer followed, engaging in normal conversation as if nothing had happened and then left the shop.
It was later discovered that the customer was suffering from a form of dementia. He was charged with criminal assault but he passed away before the trial.
The worker suffered a significant psychiatric injury and ceased work soon after the assault.
On 15 September 2010, Justice Atkinson ruled that the employer had breached its duty of care to the worker by not adequately guarding against the risk of an assault when workers were out of the direct view of the public.
The court found that a reasonable employer would have installed a door to the workshop that was capable of being shut and locked. It was said that the worker would have locked the door if it was available and if she was instructed to do so. The court found that in order to prevent the surprise to the worker, and her inability to repel the assault, the employer should have installed an infra-red beam which would have alerted the claimant to the customer's entry into the room.
It was said that the customer only assaulted the worker because there was an opportunity to do so out of the view of the public. The court ruled that the worker was only fit to work five hours per week, and on that basis she was awarded $390,558.2 in damages.
WorkCover Queensland appealed this ruling to the Queensland Court of Appeal.
The appeal was heard on 1 April 2011, in the Queensland Court of Appeal, before Justice Muir, Justice Margaret Wilson and Justice Anne Lyons. The appeal was on the basis that the primary ruling was incorrect on the following findings:
- That the employer had breached its duty of care to the worker
- If there was a breach, that it caused the injury claimed by the worker, and
- In assessing the workers loss and damages.
The Queensland Court of Appeal found that the primary ruling focussed on the circumstances of the incident rather than the response of a reasonable employer considering the likelihood of the injury.
Issues were also raised with the security measures that had been suggested. The Court of Appeal ruled there was no persuasive evidence that any of the precautions suggested were practical or likely to have prevented the assault. Based on these circumstances, it was found that it was not unreasonable that the employer had not taken such precautions. Therefore the employer was not in breach of its duty of care to the worker.
The Court of Appeal also ruled that there was no evidence that the claimant would have actually used security measures if they were available, as the customer was known to her.
It was also found that if there had been a breach of duty of care, it did not cause the claimant's injury. Psychiatric evidence confirmed that the customer's assault was impulsive rather than premeditated, and it would have made no difference if the claimant was in the back room or the front of the shop at the time of the assault.
On the matter of inconsistencies in the worker's report of her injuries and history, the Court of Appeal found that her evidence needed to be treated with considerable caution—in particular, the worker's failure to disclose a job interview reflected poorly on her credit. The Court of Appeal found that the primary judge failed to appreciate the full implications of the worker's conduct and it was ruled that the worker was capable of working up to 16 hours per week.
In a unanimous decision, the Court of Appeal overturned the primary trial decision, and ordered the worker pay WorkCover's costs of the proceeding.
The worker lodged an application with the High Court to appeal the decision on 28 July 2011. The application for leave to appeal was not allowed on 12 August 2011.