Sapwell v Lusk - [2010] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:

Sapwell v Lusk & Anor [2010] QSC 344

PARTIES:

MICHELLE ELIZABETH SAPWELL
(plaintiff)

v

ADAM PAUL LUSK and ELIZABETH LUSK trading as CLARITY BY GERBER & LUSK OPTOMETRISTS
(defendants)

FILE NO/S:

SC No 8309 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 September 2010

DELIVERED AT:

Brisbane

HEARING DATES:

16-18 August 2010

JUDGE:

Atkinson J

ORDER:

Judgment entered for the plaintiff in the net sum of $390,558.82.

CATCHWORDS:

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – FORESEEABILITY – where plaintiff was employed by the defendants as an optical technician in an optometry shop – where plaintiff worked alone during daylight hours and would repair spectacles in the shop’s back room obscured from view – where plaintiff had limited view of the front section of the shop when in the back room – where the back room was not installed with any device to prevent people from following the plaintiff in to the back room or to alert the plaintiff to the presence of an intruder – where plaintiff was sexually assaulted by a customer when she was in the back room repairing his spectacles – where plaintiff claimed that she had a history of child sexual abuse and developed severe post traumatic stress disorder, depression and anxiety following the assault – whether the risk of injury to the plaintiff was foreseeable

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where plaintiff was employed by the defendants as an optical technician in an optometry shop and was sexually assaulted by a customer when she was alone at work – where plaintiff developed severe post traumatic stress disorder, depression and anxiety following the assault – where employer owes a duty of care to employees to provide a safe system of work – where employer owes a duty of care to employees to take reasonable care to protect employees from the criminal behaviour of third parties – whether defendants breached their duty to take reasonable care to avoid the foreseeable risk of injury to the plaintiff

Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355, cited
Koehler v Cerebos (Australia) Ltd [2005] HCA 15, cited
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, cited
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, cited
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, cited

COUNSEL:

W Campbell with A Williams for the plaintiff
M Grant-Taylor SC with M O’Sullivan for the defendants

SOLICITORS:

Keddies Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendants

The plaintiff, Michelle Sapwell, was an experienced optical technician who, in 2005, was employed at an optometry practice owned and operated by the defendants, Adam Lusk and Elizabeth Lusk. The optometry practice was known as Clarity Optometrists (“the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QSC 344
Decision Date: 15 September 2010

CaseChat Overview and Summary

The matter of Sapwell v Lusk was before the court to determine the employer's liability for an injury sustained by an employee at work. The plaintiff, Sapwell, was employed by the defendants, Lusk, as an optical technician in their optometry shop. While working alone in the back room of the shop, Sapwell was sexually assaulted by a customer. This resulted in severe post-traumatic stress disorder, depression, and anxiety for the plaintiff. The court was tasked with determining whether the risk of injury was foreseeable and whether the defendants breached their duty of care to the plaintiff.

The central legal issues were whether the defendants could be held liable at common law for the plaintiff's injury, particularly concerning the foreseeability of the risk and the existence of a duty of care. The court examined whether the risk of the plaintiff being sexually assaulted while working alone in the back room was reasonably foreseeable. Additionally, the court considered whether the defendants breached their duty of care by failing to provide a safe system of work and to protect the plaintiff from the criminal behaviour of third parties.

The court held that the risk of the plaintiff being sexually assaulted in the back room was reasonably foreseeable, given the isolated nature of her work environment and the lack of security measures. The court found that the defendants owed a duty of care to the plaintiff to provide a safe system of work and to protect her from the criminal behaviour of third parties. The court determined that the defendants breached this duty by not implementing reasonable measures to prevent the plaintiff from being followed into the back room or to alert her to the presence of an intruder. Consequently, the court found the defendants liable for the plaintiff's injuries.

The court entered judgment in favour of the plaintiff in the net sum of $390,558.82. This amount reflects the compensation for the plaintiff's post-traumatic stress disorder, depression, and anxiety resulting from the sexual assault.

Orders

Orders of the court

Judgment entered for the plaintiff in the net sum of $390,558.82.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sapwell v Lusk & Anor [2010] QSC 344
PARTIES:	MICHELLE ELIZABETH SAPWELL (plaintiff) v ADAM PAUL LUSK and ELIZABETH LUSK trading as CLARITY BY GERBER & LUSK OPTOMETRISTS (defendants)
FILE NO/S:	SC No 8309 of 2008
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 September 2010
DELIVERED AT:	Brisbane
HEARING DATES:	16-18 August 2010
JUDGE:	Atkinson J
ORDER:	Judgment entered for the plaintiff in the net sum of $390,558.82.
CATCHWORDS:	EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – FORESEEABILITY – where plaintiff was employed by the defendants as an optical technician in an optometry shop – where plaintiff worked alone during daylight hours and would repair spectacles in the shop’s back room obscured from view – where plaintiff had limited view of the front section of the shop when in the back room – where the back room was not installed with any device to prevent people from following the plaintiff in to the back room or to alert the plaintiff to the presence of an intruder – where plaintiff was sexually assaulted by a customer when she was in the back room repairing his spectacles – where plaintiff claimed that she had a history of child sexual abuse and developed severe post traumatic stress disorder, depression and anxiety following the assault – whether the risk of injury to the plaintiff was foreseeable TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where plaintiff was employed by the defendants as an optical technician in an optometry shop and was sexually assaulted by a customer when she was alone at work – where plaintiff developed severe post traumatic stress disorder, depression and anxiety following the assault – where employer owes a duty of care to employees to provide a safe system of work – where employer owes a duty of care to employees to take reasonable care to protect employees from the criminal behaviour of third parties – whether defendants breached their duty to take reasonable care to avoid the foreseeable risk of injury to the plaintiff Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355, cited Koehler v Cerebos (Australia) Ltd [2005] HCA 15, cited Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, cited Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, cited Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, cited
COUNSEL:	W Campbell with A Williams for the plaintiff M Grant-Taylor SC with M O’Sullivan for the defendants
SOLICITORS:	Keddies Lawyers for the plaintiff McInnes Wilson Lawyers for the defendants