Judge has 20:20 Hindsight  (QLD)

An optical technician working alone in an optometry shop was sexually assaulted by a 70-year-old customer who had followed her into a back room where the technician was adjusting the customer's spectacles.

The technician sued her employer and was successful in the first instance. The trial judge held that her employers should have installed a self-closing, lockable door to the workshop room or an infra red beam across the doorway to trigger an alarm each time someone entered the workshop. She was awarded $390,000 plus costs as a result of her psychological injuries arising from the incident.

The Queensland Court of Appeal reversed that decision unanimously. It was held that the trial judge had approached the assessment of liability with an inappropriate use of hindsight. Given the very slight risk of the plaintiff being assaulted in the shop and the lack of evidence that any of the suggested additional precautions would have been practical or effective, the plaintiff failed to establish that the employers’ conduct was unreasonable.

The Court of Appeal also found that there was insufficient evidence that the failure to adopt additional security measures caused the assault. It was noted, by way of example, that the plaintiff would probably not have bothered to lock the door to the back room (if she was able to) when a seemingly harmless 70- year-old customer was in the shop.

Lusk v Sapwell [2011] QCA 59

An employer's duty of care to an employee is non-delegable, and a high standard of care is expected. But the duty is not absolute. And in order to succeed in an action for damages for breach of that duty the employee must establish both the breach and that the employer’s conduct materially caused the injury. ​