Lusk v Sapwell[2011] QCA 59

SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  On Tuesday 18 January 2005, whilst employed as an optical technician and receptionist in an optometry practice owned and operated by the appellants in premises in Nash Street, Rosalie, the respondent was sexually molested by an elderly male customer (“the offender”).  The respondent commenced a proceeding in the Supreme Court against the appellants alleging that she suffered psychiatric impairment as a result of the incident and that her resulting loss and damage were caused by the negligence and breach of contract of the appellants.  After a three day trial, the primary judge found that the appellants were in breach of their duty to protect the respondent, “an employee in a vulnerable position”.[1]  It was found that the respondent “suffered a severe depression as a result of the incident and [that] the psychological sequelae [had] been devastating.”  Damages were assessed at $390,558.82 and it was ordered that judgment be entered for the respondent in that sum.

The appeal

[2] The appellants appealed against the judgment alleging that the primary judge erred:

(a) in finding that the appellants had breached their duty of care to the respondent;

(b) in finding that, if there was a breach of the appellants’ duty of care, it was causative of the losses claimed by the respondent; and

(c) in assessing the respondent’s loss and damage.

The assault and its aftermath

[3] Before going to the grounds of appeal it is useful to outline the relevant evidence.  The offender was a 70 year old former accountant.  He had been in the shop about six times before the incident to have his spectacles fixed.  On those occasions he had been accompanied, either by his wife or son.  On 14 January, the offender came into the shop with his son.  He requested that the frames of his spectacles be repaired.  That could not be done immediately and the respondent asked for the offender’s name and contact details.  The offender’s son gave the name “Mr Bart” and provided a phone number to ring.  The spectacles were subsequently collected. 

[4] On 18 January 2005, the offender entered the shop at around 5 pm unaccompanied.  He requested the respondent, who, as usual, was attending the shop by herself, to fit his glasses.  The respondent, who had been behind the reception desk, came around into the body of the shop and fitted them on his face.  She then took the spectacles and walked to the back of the shop past the reception desk and turned into the workroom.  She placed the spectacles, I infer, on top of a small work bench and bent over to work on them.  The respondent described what then happened:

“ … the next minute I felt him - he had his hands on my hips and he was gyrating but like moving backwards and forwards, like instigating sex would be the best way to describe it so he was kind of banging up against me … I stood up and then he put his hands … just casually moved his hands up on to my breasts and I think that’s when I told him to fuck off … I just pushed him and then I fled out the front … He just casually walked out and then stood … at reception and started talking about his son’s land at Noosa and just talked like nothing had happened.”

[5] The respondent said that a customer came into the shop and the offender departed. As he did so,  “… he kind of turned away from her and walked out so that she couldn’t see his face and then he just left.” 

[6] On the day after the incident the respondent was interviewed by police officers.  She was then in a greatly distressed condition and saw her general practitioner, Dr Stanley.  The doctor prescribed the drug frisium and referred her to a counsellor, Ms Allan.  The respondent was incapacitated by her reaction to the frisium and did not return to work until 27 January 2005.  After her return she did not cope very well.  On 28 January the respondent saw the offender passing the shop.  She understood that police had been unable to contact him so she ran out of the shop and tried to follow him but was unable to keep him in sight.  Returning to the shop she retrieved details of the son’s name and contact number from the rubbish bin. 

[7] The respondent continued working until 28 April 2005.  On that day, according to her, the offender and his wife stood outside the shop and stared in at her.  She was alone at the time and panicked.  She locked up the shop, left and did not return.  The shop front faced Nash Street a “relatively busy road” in Rosalie, a pleasant residential suburb.  The shop front was mainly clear glass which permitted a largely unobstructed vision into the interior from the footpath and roadway.  The entrance was on the right hand side of the shop viewed from the street.  The major part of the interior of the shop consisted of a large room containing a reception counter and work station in front of a rear wall parallel to the glass street front wall.  The reception counter and work area behind it extended approximately halfway into the room from the rear wall.  Glasses cabinets occupied the left hand wall and also a short partitioning wall at the front entrance and the relatively short rear wall which was separated from the wall behind the reception desk by an opening which led into the workroom.  On the other side of the reception desk was a “testing room” accessible through a sliding door.  The testing room was directly in front of the door to the street and a person entering the shop had to turn left after the end of a short partitioning wall to pass in front of the reception desk. 

[8] No dimensions of the shop or its component rooms were put in evidence, but it is apparent from photographs which were in evidence that the reception desk and the work station behind it occupied an appreciable part of the public area of the shop, and that the workroom was quite small.  Its floor space, which was not occupied by cabinets, benches, desks or a fridge was much smaller again.

[9] There was no view into the workroom from the street, footpath or reception area.  It was possible, however, to look from the workroom into the public area of the shop through four horizontal strips of clear glass in the large frosted glass panel located in the middle of the wall behind the reception area. 

The evidence of Ms Webber

[10]  Ms Webber gave evidence to the following effect.  She had been a self employed optometrist since 1991.  She opened her first practice in March 1991 and her second later the same year.  In each of those practices she employed one female staff member.  She commenced practice in the Nash Street premises on an unspecified date.  In her 20 years in practice she experienced the loss of one or two sunglasses or frames on half a dozen occasions.  She never had concerns for her personal safety or those of her staff.  She never had complaints from staff concerning their personal safety.  She could not recall any “internal security set-ups within any of the practices” that she has worked in. 

[11]  Where a practice had a door on a rear area in which work was carried out it would normally be left open by a person entering a backroom to make adjustments to glasses.  She had not heard of any incident like the subject incident nor of any assault on a staff member in an optometrist’s shop during all of her years in practice. 

The evidence of Mrs Lusk

[12]  The appellant, Mrs Lusk, gave evidence to the following effect.  She and her husband, the male appellant, purchased the Nash Street optometry practice from Ms Webber in mid-2002.  They made no alterations to the structural layout of the premises.  Only a small amount of cash was kept on the premises as most customers used credit cards for their purchases.  In the 12 or 13 years she had been in practice during which she worked at approximately a dozen optometry outlets, she did not experience any assault or any concern for her personal safety.  The week after the incident the respondent raised the prospect of her suing the appellants.  Concern over the respondent’s attitude caused Mrs Lusk to start keeping diary notes.  She noted in her diary on 3 February 2005 that the respondent was in tears and that a sales representative was telling the respondent that she would get through her problems. 

The evidence of Mr Jennings

[13]  Mr Richard Jennings, a “consultant safety and security risk analyst” made reports dated 8 April 2008, 29 April 2009, 26 October 2009 and 18 November 2009 which were tendered.  He had a Bachelor of Arts degree, had been a police officer in London for 12 years, had been engaged in security management work and held a number of certificates in security guarding and security risk management.  In his report dated 8 April 2008, he expressed the opinion that there should have been a system in place “whereby either the repairs were carried out in the front customer space of the shop … [or] There should have also been some barrier to being followed into the back room such as a door”.  In his opinion, the door and window of the backroom should have been transparent so that the respondent could see “what the customers were doing outside” when she was in the backroom. 

[14]  In his report dated 29 April 2009, Mr Jennings was of the view that it would have been safer for persons working by themselves in the shop

“to have a self closing sold (sic) door on the rear storage/workshop room with a necessity to have a key to open it from the shop side and either clear glass in the window above and behind the reception desk and a panic hold up button in the storeroom which would silently call Police via an alarm monitoring facility.”

The primary judge’s findings on negligence

[15]  The primary judge found that the appellants breached their duty of care to the respondent by failing to install a “mechanism” to exclude others from a work space not visible to the general public.  The mechanisms selected were a door “capable of being shut and locked” or an infra red beam.  The primary judge explained:

“[74]  An obvious way to reduce the risk of such assault is to have mechanisms in place which enable an employee who is alone and in a situation where she or he does not have the protection of being able to be seen by members of the general public to exclude others from the work space. This would involve no more than placing a door capable of being shut and locked between the employee and the access to the employee’s work space. In order to prevent the surprise which generated the plaintiff’s inability to repel the assault until it had happened, all that would be needed would be an infra-red beam between the open entry to the back section of the shop which would be triggered if someone entered the area. The first option would have prevented Mr Bartholomaeus (or any other assailant) from following her into the back section of the shop. The second option would have alerted her to his ingress enabling her to be aware of his presence and therefore not to have her back to him and to have been in a much better position to fend off any attack. Neither option would have been expensive, difficult or inconvenient. 

[75]  The evidence showed that the cost of purchasing and installing an infra-red security beam would have been $300.00 plus GST. The cost of a self-locking door with swipe or pin would have been $1,200 plus GST (not including the door). There was a sliding door between the reception area and a room used by the optometrist for eye testing showing that such a door was hardly unusual. The suggestion by the defence that Ms Sapwell could have moved the tools out to the front reception desk is hardly an answer to the problem. They were kept in the back area of the shop where there was a work bench for them to be used. The employers did not suggest or recommend to Ms Sapwell that she repair glasses in the reception area.”

[16]  It will be seen that in paragraph 75 the primary judge referred to “a self locking door with swipe or pin” rather than the “door capable of being shut and locked” referred to in the previous paragraph.  The other findings critical for present purposes are:

“[73]  The reasonable response to such a risk depends on weighing up the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action. Here there were no conflicting responsibilities. The risk of an employee being assaulted whilst alone is a serious one, particularly of a woman working alone being sexually assaulted. Of course, while foreseeable, it is not very likely. Nevertheless the adverse effects of any such assault are serious and ought to be guarded against, particularly if it can be done relatively easily and inexpensively.”

The appellants’ contentions

[17]  The appellants argued that the primary judge approached the assessment of liability with an inappropriate and impermissible use of the benefit of hindsight.  In that regard, they placed reliance on the following passage from the reasons of Hayne J in Vairy v Wyong Shire Council:[2]

“[124]  Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.”

[18]  Hayne J, in explaining why the enquiry as to whether a duty of care had been breached was prospective and not confined to the circumstances of the plaintiff’s accident, said:

“[125]  There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk.

Look forward or look back?

[126]  When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

[127]  There may be more than one place where this risk of injury may come to pass. Because the inquiry is prospective there is no basis for assuming in such a case that the only risk to be considered is the risk that an injury will occur at one of the several, perhaps many, places where it could occur. Romeo was just such a case and so is this. In both cases there were many places to which the public had access and of which the Commission (in Romeo) and the Council (in this case) had the care, control and management. In Romeo, there were many places where a person could fall off a cliff; here, there were many places where a person could dive into water that was too shallow. Because the inquiry is prospective, all these possibilities must be considered. And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as "consideration of the magnitude of the risk and the degree of the probability of its occurrence". It is only by looking forward that due account can be taken of "the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have".

[128]  If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was - diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.”  (References omitted.)

[19]  Reference was also made to these observations of Mason P in Coca-Cola Amatil (NSW) Pty Ltd v Pareezer:[3]

“In a case of breach by omission the plaintiff must clearly identify what should have been done and proved that it was unreasonable in the circumstances not to do it (cf Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319). A breach inquiry is not satisfied merely by positing, with the benefit of hindsight, that something more might have been done.”

[20]  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.” 

Was there a breach of the appellants’ duty of care?

[21]  Mr Jennings conceded in cross-examination that the subject business was not one that “incurred any special security or safety risks which would be the case in a retail shop where the product sold was of substantial value”.  Ms Webber, the previous owner of the practice, gave the evidence referred to earlier that she had never felt threatened when in the store and that she had never heard of a staff member in an optometry shop being assaulted.  She said also that she had never received any complaints from staff regarding their personal safety.  There was no evidence of any assault on a female employee having taken place in an optometry shop 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.

[22]  It does appear that the primary judge may have focussed unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of the appellants having regard to the prospect of the risk of injury.  In Wyong Shire Council v Shirt[4] Mason J said:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”

[23]  Mason J then explained that a risk of injury which is extremely unlikely to occur may nevertheless constitute a foreseeable risk:[5]

“The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

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

[25]  As well as the security solutions put forward by the primary judge, the respondent claimed that other security precautions which could or should have been taken were the provision of a simple sign warning that the premises were under video surveillance and/or the installation of a real or dummy CCTV camera. 

[26]  There are difficulties with all of the solutions put forward.  The use of a door capable of being shut and locked or self closing door would not seem to be particularly practical where a receptionist or technician might, in the course of fitting or adjusting spectacles, be required, as Ms Webber explained, to make several brief trips from the front of the store to the workroom.  She said that if there happened to be a door in premises between a work area and the public area “ … if you were adjusting a pair of glasses you would go back, work on the pair of glasses, then come back through to the dispensary where the patient is, so you’re in and out through that door potentially multiple times so the door would be left open.”

[27]  The positioning of an infra red beam in the entry to the workroom would also be unlikely to confer any practical benefit.  By the time the alarm was triggered by a person passing through the beam the person would be entering the small room and within reach of anyone in it or virtually so.  Also the use of such a beam internally might be thought to be both unusual and odd in that the alarm would be triggered, virtually always, by staff members and, at times, the alarm would be triggered frequently.  For this reason the female appellant did not consider the beam to be a practical option.  Mr Jennings’ first report concluded that either repairs should have been carried out in the front of the shop or that there should have been a transparent door and window to the backroom.  The report mentioned CCTV coverage but only as a means of permitting staff to view persons in the public area. 

[28]  The evidence did not suggest that Mr Jennings had any expertise in the workings of an optometry business and his opinion that employees in a business of the type in question should always be within the public gaze may be thought problematic.  The work room, although cramped, contains a small kitchen, radio/CD player, bench and telephone.  It served as a lunch and rest room and was used as “a personal storage area”, as well as a work room.  Unless the testing room was not being used there was no other room in which the respondent could resort to eat, relax or attend to personal matters in privacy.  The evidence does not suggest that the testing room when unoccupied could be used for such purposes.

[29]  In his 29 April 2009 report, Mr Jennings expanded on his door recommendation, describing his preferred door as “a self closing sold (sic) door … with a necessity to have a key to open it from the shop side and either clear glass in the window above and behind the reception desk and a panic hold up button in the storeroom which would silently call Police via an alarm monitoring facility.” 

[30]  In cross-examination, Mr Jennings accepted that providing a lockable door “would simply increase the likelihood or the duration or the ferocity of an assault” if an attacker got into the backroom undetected.  He accepted that there were “pros and cons”.  Neither Mr Jennings, nor anyone else, gave evidence of the deterrent effect of an appropriately worded sign or of a commonly displayed working or bogus CCTV system in premises such as the subject premises or in any other premises for that matter. 

[31]  It is common knowledge that service stations, convenience stores and liquor stores in which such signs and devices are frequently seen are commonly burgled.  Whether such devices, singly or in combination, would provide appreciable protection against the singularly slight risk of a staff member in an optometry shop being attacked is a matter on which this Court could only speculate.  The primary judge saw no need to embark on such speculation and this court should take a similar course.

[32]  In my respectful opinion, having regard to the magnitude of the risk of a female employee being assaulted and the absence of persuasive evidence that one or more of the precautions identified by the primary judge or advocated by counsel for the respondent was or were practical or likely to afford an employee an appreciable degree of protection from assault, it was not established that it was unreasonable of the appellants not to have taken any such precaution.[6]  Nor was it shown, for the reasons already given, that the appellants were in breach of their obligation to take reasonable care to prevent the risk of injury to the respondent and it cannot be said that a safe system of work was not provided.

Was the respondent’s injury caused by any breach of duty on the part of the appellants?

[33]  Having regard to the conclusion that the appellants were not shown to be in breach of their duty of care, the appellants must succeed on the appeal.  But it is desirable nevertheless to address the question of causation which loomed large at first instance and on the appeal.

[34]  The appellants contend that even if, as found by the primary judge, a lockable door  or an infra red beam should have been provided it was probable that the attack would nevertheless have occurred.  The respondent gave no evidence of what she would or would not have done had there been a lockable door or an electronic beam.  Had such evidence been given it may have been of limited value in any event.[7]  The evidence of Mrs Lusk suggested that it was unlikely that an employee such as the respondent, working in an environment which she had every entitlement to consider safe, would subject herself to the inconvenience of shutting and locking such a door in the circumstances under consideration.  An obvious feature of those circumstances was that the offender was a seemingly perfectly respectable man aged about 70 who the respondent found to be “quite pleasant”.  It was thus quite unlikely that, the respondent, when taking the offender’s spectacles to the workroom, would have secured herself against misadventure by locking the door behind her. 

[35]  For similar reasons it is doubtful that had an electronic beam been provided it would have been switched on at the time.  For the reasons earlier advanced, it is also not possible to determine whether if such a beam had been operating the offender would have heeded it or that an assault would not have occurred.

[36]  The primary judge disposed of the appellants’ arguments in relation to the door as follows:

“The defendant also argued that there was no evidence that had a self-locking door been in place, Ms Sapwell would have used it. However, this ignores the important fact that it is insufficient simply to put a security system in place, staff must be trained and required to use it. These are duties cast on an employer.”

This paragraph refers to a “self-locking” door not the lockable door referred to in paragraph [74] as one of the obvious ways to reduce the risk of assault.  It may be accepted that if a self-locking door had been provided in fulfilment of the obligation to provide a safe system of work, it would have been appropriate for staff to be told to use it.  It does not follow, however, that such instructions would or should have been to use the door regardless of the circumstances or that if such instructions had been given they would have been followed.  Normally, employers will avoid placing unnecessary impediments in the way of the performance by employees of their everyday duties and employees can be expected to attempt to circumvent such impediments. 

[37]  Counsel for the respondent argued that the offender would have been deterred from instigating his attack had there been a sign warning of video surveillance, real or dummy CCTV cameras, a door, or an infra red beam.  The respondent relied on the finding by the primary judge[8] that as the offender “ … knew that assaulting [the respondent] was wrong, he took advantage of the opportunity to assault her when she was out of sight of the public and more vulnerable.  She did not face the same risk of assault from him, or indeed anyone else, while she was in public view.”  The evidence, however, does not support the respondent’s counsel’s propositions and the primary judge did not find any element of prior planning in the attack. 

[38]  Dr Varghese, a psychiatrist, in a written opinion dated 9 June 2010 concluded that the assault was likely to have been impulsive rather than premeditated and that it tended to demonstrate a lack of judgment rather than predatory behaviour.  In his opinion, “it would have made no real difference whether the [respondent] was situated in the back room or in the front portion of the shop at the time that [the offender] committed the assault.”  In his view, the offender would not “even have been deterred from committing the assault had there been people within sight.” 

[39]  Dr Mulholland, another psychiatrist,  said in a report dated 6 October 2009 that in his opinion the offender was probably dementing, that it was likely that the assault was impulsive rather than premeditated, and as it was likely that the offender did not think his actions through, it was possible, though less likely, that the offender could have assaulted the respondent when adjusting glasses in the front of the shop. 

[40]  In oral evidence Dr Varghese said that the offender’s capacity for self control was more likely to be affected than his capacity “for knowing the wrongness of an act”.  A DVD of the offender’s police interview showed a man who was unable to maintain a train of thought and seemingly unable to articulate concepts of any complexity.  Counsel for the respondent relied on this passage in the record of interview:[9]

HW:“Did the lady take the glasses to the back room on the other  times that she had fixed the glasses?”

…

HW:“She did, did you follow her on those times?”

BB:“Not always.”

“Not always, had you followed her before?”

BB:“I had.”

HW:“You had, had she realized you had followed her before?”

BB:“No.”

[41]  However, having regard to the offender’s obvious mental limitations and the fact that he was accompanied either by his wife or son on the previous occasions he was in the shop, his statement that he had followed the respondent before must be treated with considerable scepticism.  Having regard to the considerations just discussed, I do not accept that the evidence established that if the appellants were in breach of their duty to the respondent, that breach was causative of the respondent’s loss and damage.

Damages

[42]  It is necessary to consider the appeal against quantum in case the above findings on liability do not survive an appeal.

[43]  The appellants submit that the primary judge erred in assessing quantum as a result of failing to reject the evidence of the respondent where it was not corroborated by reliable evidence.  It was submitted that the combined weight of all the evidence established that the respondent had made a substantial, if not complete, recovery from any psychiatric impairment arising from the incident.  In particular, it was alleged that:

(a) the award of $60,000 for general damages was inconsistent and irreconcilable with the primary judge’s allowing interest on as much as 75 per cent of the general damage award;

(b) there was evidence which should have resulted in confining past economic loss to the period between 29 April 2005 and 5 February 2007, and at most, a global award of $50,000 for loss of future earning capacity. 

[44]  The evidence principally relied on was:

(a) the respondent’s admission that she had informed Ms Crilly in a job interview that she “had been out of work for five years because [she was] looking after [her] husband who had been king hit and suffered brain damage”;

(b) Dr Mulholland’s evidence that “[t]he end result of her husband’s injuries is that now she is in effect his carer”, and that “Mrs. Sapwell is more of a carer for her husband than vice versa.  Future work is probably not a realistic proposition because of the issues with her husband.”

[45]  I accept that the evidence of the respondent needed to be treated with considerable caution.  The respondent attended an interview for prospective employment at Franz Felfer Optometry on 10 August 2010, days before the commencement of the trial.  In cross-examination she said, in substance, that she had attended only two job interviews:  one with Eslaw and one with the University of Queensland.  She confirmed that the only interviews she had been to recently were the two just mentioned.  The cross-examiner then asked if she had gone on Tuesday of the previous week to a job interview.  She then volunteered that she “went and saw Franz Felfer”.  She said that “to be perfectly honest” she had “forgotten about Franz” and that she didn’t realise it was a job interview until she got there.  Her evidence was inconsistent with that of Ms Crilly, one of the two persons who interviewed her, and generally improbable.

[46]  The respondent provided Ms Crilly with a resume at the time of her job interview.  It concluded that “others regard me as a friendly out-going person, interested in others and happy to take on new tasks and skills.  I am dependable and enjoy achieving challenges in both life and work.  I am available to work when and where as required.”  This rather damaging document was not disclosed, although the evidence was that the respondent’s solicitors explained to the respondent her duty of disclosure.

[47]  The respondent said that she went to the interview because she wanted to see “if [she] could do it”.  She did not say anything to the women interviewing her to indicate that she did not want the job or that she may be unable to do it and matters were left on the basis that the interviewers would telephone the respondent. 

[48]  The respondent said that she decided that she wasn’t taking the job “About halfway through the interview”.  Her evidence was also that she started having a panic attack when she went in to the shop to be interviewed.  Ms Crilly detected no signs of anxiety on the part of the respondent during the interview and described her demeanour as “good”.  Neither at the end of the interview nor later did the respondent inform Ms Crilly that she could not do the job if it was offered to her.

[49]  Ms Crilly had no interest in the outcome of the case and it was not suggested to her in cross-examination that the meeting with the respondent was not in form, substance or purpose a job interview.

[50]  There was another significant discrepancy in the respondent’s evidence.  In her evidence in chief, the respondent accepted as accurate the history provided by her to Dr Mulholland and recorded in his report of 20 December 2007.  That included ahistory of sexual abuse from when the appellant was four to five years of age until she was 20 to 21 years of age.[10]  Asked if she “always remembered [the sexual abuse allegedly suffered by her from age 5 to 21]”, she confirmed that she had.

[51]  A report of Dr Jordan psychologist dated 28 February 2005 stated that:

“Mrs Sapwell reported at interview that this alleged assault has aroused memories of her being sexually abused as a child.  She had been aware prior to the event that she had been abused as a child but was unaware of the details.  She said that since the alleged assault on 18 January 2005, she has had vivid images of being sexually assaulted when she was a 5 year old child.  This is causing her acute distress and exacerbating her current symptoms.”

[52]  Later in the report it was said:

“[The respondent] said that prior to the alleged assault on 18 January, she had experienced no recollections of being abused as a child.”

[53]  Ms Allan, a counsellor, had provided reports to WorkCover Queensland stated in a report dated 31 October 2007 that “[the respondent] has experienced horrific sexual and emotional abuse and neglect as a child.  The sexual and emotional abuse continued into her adult years, including, for example, her mother allegedly arranging [the respondent] to be raped on a number of occasions.” 

[54]  Dr Michael Beech, in a report dated 12 July 2005 to WorkCover Queensland made after interviewing the respondent, said:

“[The respondent] was born in Napier, New Zealand.  Her parents separated when she was aged 5 years and she and her two siblings resided with their father who had custody.  [The respondent] is uncertain of the conditions of her early childhood but believed that there was abuse which was never discussed although in retrospect, she knows that she required hospital treatment for this.”

[55]  At the conclusion of the report Dr Beech stated, “[w]hile giving a statement regarding her assault, she experienced intrusive recollections and emotional disturbance associated with earlier childhood sexual abuse probably aggravated by a subsequent sexual assault at the age of 18 years.”

[56]  Dr Varghese noted in his report of 17 July 2008 that he was informed by the respondent that when giving her statement to police she began “screaming, crying and shaking” and “remembered being sexually assaulted as a child”.  She said that prior to the assault in the shop she had “no memory” of the childhood sexual assault but that there were “other things” such as having dreams about being in a bedroom or on the floor.  The report records:

“She states she had ‘files in (her) head’ and  ‘I had never looked at them before or opened them up’.  ‘I just made sure everything was there’.”

[57]  In cross-examination it was put to Dr Varghese that the respondent had told him that she had a memory of the earlier sexual abuse, that she was aware that she had been assaulted over a period of some years but couldn’t remember the detail.  Dr Varghese responded that it was something to which he would have paid a considerable amount of attention as “This was a very unusual story”.  He said that the respondent was “very clear … that there had been no memory prior to this event”.  Dr Varghese could not accept that, if the childhood sexual abuse had occurred, the respondent would have had no memory of it until after the assault.  He said:

“What I couldn’t make sense of was that somebody could be sexually abused over a long period of time, including rape at the age of 18, and not remember it.  That’s what I couldn’t make sense of.”[11]

[58]  Dr Varghese said that as he was intrigued about the notion that the respondent could have no memory of sexual abuse in the past until after the incident, he spent “some time on the question”.[12]

[59]  Dr Mulholland’s opinion was that any memories of rape in childhood and early adulthood, although they may have been suppressed would not have been forgotten.  He accepted that the respondent’s claim that the alleged sexual abuse had been forgotten “challenged [her] credibility”.

[60]  In cross-examination, the respondent admitted being very selective in what she had told the expert witnesses, other than Ms Allan and Dr White.  She said, by necessary implication, that only they were aware of her full relevant history.[13]

[61]  The primary judge accepted the respondent’s explanation that her selectivity in providing her history to expert witnesses was because “she found it very embarrassing to discuss such intimate matters with medical practitioners.”  That consideration may well provide an explanation for the respondent’s not disclosing intimate detail or, possibly, even intimate matters.  But it does not explain why the respondent gave differing accounts to different expert witnesses of whether she had an actual recollection of the sexual abuse she claimed to have suffered.  The respondent did not avoid the topic of sexual abuse in her consultations with Dr Varghese and Dr Mulholland.  She gave an account, admittedly brief (or briefly recorded), of the alleged sexual abuse.  She explained to Dr Mulholland that her husband was “‘sick and tired’ of her going over and over what happened once she started” telling him.

[62]  The primary judge considered that the respondent “appeared to be a generally truthful witness”.  She thought that the respondent “was obviously daunted by giving evidence … [and] appeared to be unwell and struggling with panic attacks as she gave evidence”.  In her Honour’s view, although the appellant’s counsel “exposed some weaknesses and inconsistencies in her evidence … [the respondent] was able to give adequate explanations.”

[63]  The primary judge also considered that the respondent’s conduct in and concerning her job interview with Ms Crilly was not “fatal to her credit”.  Her Honour explained:

“In a sense the resume and the job interview reflect both well and badly on her.  It reflects badly on her that she did not freely reveal that she had been for the job interview and disclose the resume.  On the other hand it reflects well on her that she was trying for a job no matter that her prospects of doing the job were not realistic.  I have not formed the view that her failure to be frank about the job interview and disclose the resume is fatal to her credit.”

[64]  Those conclusions to my mind suggest that the primary judge failed to appreciate the full implications of the respondent’s conduct.  The respondent was less than frank when on oath about a matter which she must have realised had a substantial bearing on the outcome of her damages claim.  When it became apparent to her that it was likely that the cross-examiner was aware of her job interview she disclosed it explaining, “Well, I’d actually forgotten about Franz, to be perfectly honest.”  She then commenced to pretend that she didn’t know, that her meeting with Ms Crilly was a job interview.  She first said, “I didn’t realise it was a job interview until I got there.”  A little later she said, “I actually went to see if I could do it,” in response to the query, “But you went to the interview?”  She later claimed, “It wasn’t really even an interview.  Sharon just talked to me.”  The substance of this evidence was contradicted by Ms Crilly whose evidence was discussed earlier.

[65]  When this blatant dissembling is coupled with her failure to disclose her resume, and the difficulties with her evidence concerning her mental history it is impossible to regard the respondent as a witness of credit.  In my respectful opinion, the primary judge failed to use the advantage she had over this court of seeing and hearing the respondent give evidence.  The following observations of Mc PhersonJA in Collings & Anor v Amaroo (Qld) Pty Ltd & Anor[14] explain the difficulties to which the respondent’s lack of credibility give rise:

“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered.  It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth.”

[66]  Fortunately for the respondent, her claims of inability to work until recently commencing part-time casual work with the University of Queensland received a substantial degree of corroboration from the medical evidence of the treating doctors.  Counsel for the appellants argued that, for a substantial period, the respondent refrained from working because she was looking after her husband.  The fact that she was caring for her husband does not negate the medical evidence of her unfitness for work and the primary judge made an appropriate adjustment to her award to take into account the length of time she would have been absent from work assisting her husband had she been able to work.

[67]  In my view, however, the evidence does not support the award of $200,000 for future economic loss, the calculation of which was based on the premise that the respondent would be able to work only five hours per week.

[68]  The primary judge explained her calculation of future economic loss as follows:

“I have based this on Scenario 1/ Residual B of Mr Thompson's report on the finding that she has a residual capacity for work of 5 hours per week and that she would have worked until she was 65 years of age, which is calculated in Schedule J of Mr Thompson’s report. Her capacity to work in the future would not have been adversely affected by her husband's injuries. If anything they would have it more rather than less likely that she would have continued to work to support the family. That amount is $261,181.00. This should be further discounted by 15 per cent to allow for the usual contingencies. The loss of future income is calculated therefore at $222,003.85 which I will round to $200,000.00 which takes account, inter alia, of the cost of travel to and from work.”[15]

[69]  The evidence did not establish that the respondent’s future earning capacity as at the time of the trial was so impaired.  She was then working part-time.  She sought further employment without hinting to the prospective employer that she might have difficulty with the job should her application prove successful.  Her resume asserted an unqualified readiness and willingness to work.  When it was put to the respondent on cross-examination that she had told Dr Ewing that she had experienced a gradual recovery with treatment and that her recovery was complete, she did not deny it.  Instead she asserted, in effect, that other medical practitioners had different views.

[70]  The job for which the respondent was interviewed by Ms Crilly involved a minimum of 16 hours per week.  The evidence was that the respondent felt comfortable with that.  At the time of the trial the respondent was working two hours a week for the University of Queensland but there was an expectation that the hours would increase to up to 10 hours a week.  The work could be done from home.  There was some evidence of continuing psychiatric impairment and Dr Varghese was of the opinion that the respondent “would have great difficulty in working in a retail capacity but [that] she would be able to use her skills in some other setting”.  In his report of 22 September 2009, Dr Mulholland gave the opinion that:

“Return to work in a back room situation as an optical technician is a possibility but it remains unclear whether she would be able to cope with same or not.  Importantly there is the issue with her husband in that he is not well and they are now both on the Disability Support Pension.  It sounds as though in many respects they look after each other although I think the reality of the situation is that Mrs. Sapwell is more of a carer for her husband than vice versa.  Future work is probably not a realistic proposition because of the issues with her husband and in any event at 49 she is not getting any younger and increasingly the options are closing down.”

[71]  These opinions, of course, were based on the information provided by the respondent.  That information was likely to have been unreliable in material respects and the report was prepared more than two years before the respondent’s part-time employment and job interview.  Dr Varghese’s report was dated 17 July 2008.

[72]  Having regard to the matters just discussed, I regard it as reasonable to assess future economic loss on the basis that the respondent had the capacity to work up to 16 hours per week.  Otherwise, I would adopt the data and calculations utilised by the primary judge.  I am not persuaded that the findings on quantum should be otherwise disturbed.

Conclusion

[73]  For the above reasons I would: allow the appeal; set aside the judgment at first instance and any order as to costs at first instance; and order that the respondent pay the appellants’ costs of the proceeding.

[74]  MARGARET WILSON AJA:   I agree with the orders proposed by Muir JA and with his Honour’s reasons for judgment.

[75] I wish to add the following observations in relation to causation generally and in particular to this passage in the learned trial judge’s reasons –

"[87]The defendant also argued that there was no evidence that had a self-locking door been in place, Ms Sapwell would have used it.  However, this ignores the important fact that it is insufficient simply to put a security system in place, staff must be trained and required to use it. These are duties cast on an employer."

[76]  An employer’s duty of care to his or her 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.[16]  Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that performance of the duty would have averted the harm.

[77] In Sutherland Shire Council v Heyman[17] Mason J said –

"When there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm. This is the approach which has been taken in the case, already mentioned, involving the liability of the occupier for damage resulting from his failure to guard against a danger caused by the positive and wrongful act of another and in the liability of the architect for injury caused to a worker as a result of the architect’s failure to inspect a dangerous structure: Florida Hotels Pty Ltd v Mayo;[18] Clay v A J Crump & Sons Ltd.[19] And it is the approach which underlies the liability of the defendant for breach of statutory duty to guard dangerous machinery."

[78] On the assumption the appellants breached their duty of care by failing to provide one or more of the safety devices for which the respondent contended, it remained for the respondent to prove that she would have made use of such device or devices. In Quigley v Commonwealth [20] Mason and Aickin JJ said –

"The issue then is whether there was evidence on which a jury could determine that the respondent’s failure to provide a safe system of work caused or contributed to the accident.  Where a defendant fails to provide a safe system of work, it is for the plaintiff to show that the appropriate safety measures would have been effective and that he would have made use of them had they been available (see Duyvelshaff v Cathcart & Ritchie Ltd [21])."

And in Duyvelshaff v Cathcart & Ritchie Ltd[22] Gibbs J said –

"On the issue of causation it was for the plaintiff to satisfy the Court that his injuries were caused by the defendant’s omission to provide a safe place or system of work or to perform his statutory duty.  To do so he must show that the safety measures would have been effective and that he would have made use of them if they had been available (Qualcast (Wolverhampton) Ltd v Haynes;[23] McWilliams v Sir William Arrol & Co Ltd.[24]  As a consequence of these and other decisions the dictum in Roberts v Dorman Long & Co Ltd[25]  that the employer cannot be heard to say that the employee would not have used the safety equipment if it were provided, cannot be supported as a correct statement of the law relating to causation, either in its application to common law negligence or a breach of a statutory duty requiring the provision of a safety belt.

It is readily apparent that the use of a safety belt would have avoided the occurrence of the injury to the plaintiff.  But it was for the plaintiff to prove that he would have used a safety belt, had it been supplied with the ladder.

In general it would be easy to draw the inference that the plaintiff would use a safety belt if it were available, that being the course which a reasonable person mindful of his own safety would take.  But here there are circumstances which persuade me that such an inference should not be drawn."

[79]  Muir JA has canvassed the relevant evidence.  I respectfully agree with his Honour’s analysis of it 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.

[80]  ANN LYONS J: I agree with the reasons of Muir JA and with the orders proposed.