Sapwell v Lusk & Ors

[2011] HCATrans 206

[2011] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B21 of 2011

B e t w e e n -

MICHELLE ELIZABETH SAPWELL

Applicant

and

ADAM PAUL LUSK

First Respondent

ELIZABETH LUSK

Second Respondent

CLARITY BY GERBER &  LUSK OPTOMETRISTS

Third Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 11.22 AM

Copyright in the High Court of Australia

MR D.A WHEELAHAN, QC:   May it please the Court, in that matter I appear with my learned friend, MR E.G. ROMANIUK, for the appellants.  (instructed by Slater & Gordon Lawyers)

MR M. GRANT‑TAYLOR, SC:   May it please the Court, I appear with my learned friend, MR R.C. MORTON, for the respondents.  (instructed by McInnes Wilson Lawyers)

HAYNE J:   Mr Wheelahan.  Yes.

MR WHEELAHAN:   Your Honours, the plaintiff in the Court below suffered the devastating consequences of a sexual assault upon her by a stranger in her workplace.  The case came on for hearing in the Supreme Court in Brisbane where the trial judge considered her claim at length following a three day trial and then embarked upon an analysis of the relevant legal principles, considered all the matters that were raised for her decision, and returned a substantial verdict for the plaintiff.  From that verdict the respondents appealed to the Court of Appeal in Queensland, and the Court of Appeal substituted a verdict for the defendants – for the verdict for the plaintiff entered at trial.

Your Honours, we have analysed the approach of the Court of Appeal and it is the judgment of Justice Muir that carried the Court of Appeal and which is the subject of our complaint in this Court.  It is instructive, in our respectful submission, your Honour, to analyse the way in which the trial judge approached the consideration of the relevant matters that she needed to consider in a case of this type.  In paragraph [68] of her judgment at page 13 of the application book her Honour starts where every judge must now start in an analysis of a case such as this with Wyong v Shirt.  We are reintroduced, your Honours, to our four friends of duty, breach, causation and damage.

As a result of a development of the jurisprudence in this area, your Honours, we now know that the duty inquiry is prospective, the breach inquiry likewise is prospective, the causation inquiry is retrospective and the damage inquiry factual.  What Justice Atkinson did was to consider the four issues in the circumstances of the case before her where there was a concession of a foreseeable risk of injury.  Your Honour, the factual circumstances are set out in the papers but broadly speaking the matters that are apposite in this application are that the plaintiff was a female, used to working alone in retail premises in a sedate suburb.  She worked alone in an optometry practice and that involved her in selling retail spectacles and the like to members of the public.

Also, as a service to patrons of that practice, she would adjust the glasses of passers‑by and patrons free of charge, generally speaking.  That involved her repairing to a back room which was not within the view of passers‑by to adjust the spectacle of the customer and then return to the public area of the store and return the glasses to the person who owned them.  On the day in question she was asked by an elderly customer, who appeared to be quite pleasant and was not behaving in a way that caused her any alarm, to adjust his spectacles.  She put them on his face to see how he looked, removed the spectacles, went into the back room where she was quite alone and was followed by him and therein sexually assaulted.

The effects upon her were devastating, primarily it appears, your Honours, because of episodes of quite devastating sexual abuse as a child.  So what the trial judge had to do, in our respectful submission, was to consider not only the four issues that were required to consider under Wyong v Shirt, namely the magnitude of the injury, the probability of it occurring, the expense, difficulty and inconvenience of alleviating action and any other conflicting responsibility.  She had to bring to bear a consideration of a special element of the employer/employee duty and that was the duty of an employer to protect employees from criminal behaviour of third parties.

BELL J:   Mr Wheelahan, for my part I do not read Justice Muir’s judgment as suggestive of an approach that overlooked that an employer’s duty may extend to protecting an employee from the risk of criminal conduct by a third party.  Is not the difficulty that at paragraph [17] on application book 37 his Honour identified the challenge as being that:

the primary judge approached the assessment of liability with an inappropriate and impermissible use of the benefit of hindsight –

then reference to Justice Hayne in Vairy v Wyong Shire Council.  Then if one goes over his Honour concluded at application book 39, paragraph [22] that that submission was made good.  Now, taking us to that line of territory involving the obligation of employers to take appropriate measures to protect against the criminal depredations of third parties in the context of the finding at application book 40, paragraph [24], that:

the magnitude of the risk of assault and the probability of its eventuating as singularly slight –

may not be to expose error in the approach that the Court of Appeal took.

MR WHEELAHAN:   Thank you, your Honour.  Your Honour, with regard to Mr Justice Muir’s approach to whether or not an employer had a duty to protect an employee from what we were discussing, your Honour says you do not read it, you do not read his judgment as excluding that or not including it, but how would you know because he does not mention it?

BELL J:   Well, you would know because there is the finding that the appellants were entitled to regard:

the magnitude of the risk of assault and the probability of its eventuating as singularly slight.

MR WHEELAHAN:   Well, your Honour, we submit that it is unhelpful for an intermediate appeal court when considering the obligation of an employer not to expose its reasoning about the nature of the duty owed by the employer.  Let me immediately travel to paragraph [24], application book 40, to which your Honour referred:

The appellants were entitled to regard the magnitude of the risk of assault and the probability of its eventuating as singularly slight.

What Justice Muir has done there, with respect, is impermissibly roll up the first two elements of the propositions developed by Mr Justice Mason in Shirt.  There are four propositions.  One has to consider the magnitude of the risk; that is all about result.  Then one has to consider the probability of its occurrence; that is all about foreseeability.  This is a foreseeable incident, the nature of which was conceded both at trial and in the Court of Appeal.

Then one must consider expense, difficulty and inconvenience in taking alleviating action.  Then one must consider are there any other conflicting responsibilities.  The magnitude here, your Honours, is immense.  The magnitude of the risk dealing with result or outcome is the devastation of this woman’s life.  Now, that is one issue that you must consider.  Probability, as described by the trial judge, was quite low or very slight.  That is a matter that one must weigh up in the prospective inquiry about breach.

So, we assert that we have magnitude of a very significant degree.  We have probability of a not very significant degree but probability justifying a finding of foreseeability nevertheless.  Expense, difficulty and inconvenience are irrelevant because the cost of the best option was $300, which is the infrared beam which would be broken by the approach of any intruder, thereby alerting not only the worker but hopefully dissuading or deterring the intruder, and we will come to that in a moment, and, of course, the trial judge said that there were no other conflicting responsibilities.

So what we have here, your Honour, is a finding by the Court of Appeal, contrary to the finding of Justice Atkinson at trial, that with a very significant, potentially devastating magnitude element, weighed against a low probability of occurrence, justifies an employer in doing nothing, because that is what this employer did, nothing.  Your Honours, in the Court of Appeal at [20], which is application book 39, Mr Justice Muir said that:

The appellants complain that the primary judge failed to have due regard to the very low risk of an assault when considering the expense, difficulty and inconvenience of taking alleviating action.  Relevance was placed on the finding that the risk of an assault “while foreseeable, [was] not very likely.”

This paragraph again exposes the deficiency in his Honour’s reasoning in that that is but two of the elements he is required to consider and he has eliminated the element which is of most significance for this appellant, namely, the magnitude of the risk.  He has bundled them together and says, magnitude and probability of occurrence are one element in the Shirt instruction, and that is the major problem with this case.

Justice Bell raised the question of whether or not the primary judge engaged in an impermissible retrospective view of how the incident happened.  What Mr Justice Muir says at [22], application book 39:

It does appear that the primary judge may have focused unduly on the circumstances of the incident –

Well, we ask rhetorically, did she, or did she not?  He does not tell us where she did, he does not tell us why it was impermissible, and he does not tell us, by reference to her judgment, how it is that she ought to have gone about it differently.

BELL J:   Application book 41, paragraph [32] might be thought to have some significance to the approach that the Court of Appeal took in terms of explication of the error that it found in the approach below, leading to the conclusion that the appellant in the Court of Appeal had not established that it was unreasonable for them not to have taken the precautions identified.

MR WHEELAHAN:   Your Honour, what Justice Muir has done, without telling us why, is substitute his view for the view of the trial judge.  The trial, your Honours, is not a rehearsal.  The approach adopted by the trial judge was robust and correct; she applied herself to all of the matters that were necessary for her to consider.  Your Honours, at application book 40, paragraph [24] his Honour repeats what we submit is an error in principle in rolling up those first two elements of Shirt.  He said:

The appellants were entitled to regard the magnitude of the risk of assault –

and let us consider that, your Honour –

as singularly slight.

That is simply incorrect, he has misdirected himself.  It is the risk of assault, the probability of it occurring, that was slight, not the magnitude of the risk at all.  This is a fundamental difficulty.  My learned junior points out, your Honour, at application book 41, paragraph [32], the passage to which Justice Bell took us, his Honour demonstrates, yet again, that he has failed to recognise the difference between magnitude of risk of assault, which is about outcome, as I say, and the probability of its eventuating, which is another matter, because he introduces that paragraph:

having regard to the magnitude of the risk of a female employee being assaulted –

Again, he is talking about probability, he is talking about low risk, and it has got nothing to do with that because it has got everything to do with outcome.  Your Honour, in application book 39, paragraph [21], Justice Muir in the last sentence, which occupies the last five lines of that paragraph, says this:

There was no evidence of any assault on a female employee having taken place in an optometry shop –

what that might have to do with it I will never know –

and no evidence which might warrant the conclusion that such an attack might occur except by way of an entirely fortuitous random act of violence which might occur regardless of location.

That is, we would respectfully suggest, precisely the type of reasoning that is criticised by Justice Hayne in Vairy and is as set out in application book 37 from line 52 to the end of the paragraph.

Your Honours, the appellant’s position with regard to these matters has been developed extensively in the submissions that we have made.  There is no benefit in us repeating them because we have articulated, we respectfully suggest, what it is that is the problem with Justice Muir’s

reasoning.  He conflates the two elements, then says that the magnitude of the risk and the probability of the risk occurring are both slight and therefore the respondents were entitled to do nothing.  The trial judge examined the alternatives, concluded that they would have dissuaded this man, but not given the opportunity to do so.  The light is on, your Honours, and they are our submissions.

HEYDON J:   Thank you, Mr Wheelahan.  Mr Grant‑Taylor, we need not trouble you. 

In our opinion, there are insufficient prospects of success in the appeal if special leave be granted.  Accordingly, the application must be dismissed with costs.

AT 11.43 AM THE MATTER WAS CONCLUDED