Brisbane Lawyers No Win No Fee – Compensation for Sexual Assault at Work
Polichronis v Teys Australia Food Solutions Pty Ltd [2016] QDC 225 is a recent decision of the District Court of Queensland that illustrates that without knowledge, an employer will not be liable for sexual assault between co-workers within the workplace. The case further highlights that medical causation is necessary to prove psychiatric injury.
Facts:
The Plaintiff was employed as a meatworker for the Defendant, who was sexually assaulted by a male co-worker at her workplace. She pursued a claim against the employer on the basis that:
- The employer knew or ought to have known that the co-worker had a propensity to carry out a sexual assault on her;
- The employer failed to take proper, adequate and appropriate steps in response to her complaint to her supervisor; and
- The employer failed to enforce a policy for the prevention of sexual harassment in the workplace.
The Plaintiff claimed that she suffered psychiatric injury as a result of the sexual assault.
The Decision:
Her Honour Justice Dick did not accept evidence provided by the Plaintiff that she was seriously physically assaulted in the ways alleged, nor did Her Honour accept evidence from two former co-workers that corroborated with the Plaintiff.
Despite finding that no written grievance procedure relating to complaints of a sexual nature were identified, the Plaintiff was aware that complaints were to be reported to her supervisor, and the Judge was unable to accept evidence that this particular complaint or any previous sexual harassment was reported.
Critical to the employer’s defence was the fact that immediately following the assault, the employer conducted a thorough investigation where the Plaintiff gave evidence in a statement that her co-worker’s behavior was only verbal and it was later found she had not previously told anyone about the incident. This was detrimental to the Plaintiff’s case, some six years later after she alleged that the employer was aware and put on notice of her abuse.
Her Honour referred to Serrah v Couran Cover Management Pty Ltd [2012] QSC 130 that held where an employer has reason to anticipate misconduct by an employee dangerous to other employees, the employer is under a duty to take reasonable steps to prevent harm. However, where there is a possible potential for danger, an employer should not be held responsible for injury except in extraordinary circumstances.
As there was no evidence that the employer was on notice or that there was a history of misconduct, which would alert the employer to the risk of sexual assault, Her Honour failed to find a duty of care was owed.
Medical Causation:
Her Honour preferred the evidence of Dr Kar over Dr Nandam, who had considered that whilst it was possible for the Plaintiff to have suffered significant stress from the assault, the Plaintiff’s problems were due to pre-existing borderline personality disorder which was further aggravated by the Plaintiff’s history of longstanding cannabis usage.
Her Honour found that Dr Nandam’s opinion that the Plaintiff had developed Post-Traumatic Stress Disorder (PTSD) and a dependence on cannabis as a result of the incident, had placed considerable weight on factors which she refused to accept. In particular, the Judge placed emphasis on:
- The fact the Plaintiff’s breakdown in marriage did not result from the assault as evidence supported that her husband had ‘kicked her out’ after discovering extra-marital affairs;
- The fact the Plaintiff had returned to work for seven months after the incident;
- The fact that the Plaintiff was likely conducting two extra-martial affairs at the time of marriage breakup, and was unlikely frightened and insecure around men; and
- Dr Nandam’s assumption that the Plaintiff was blamed by her husband for assault despite medical records indicating his support for the Plaintiff.
Lessons:
This case demonstrates the continued difficulty which Plaintiffs face against employers for sexual assault allegations against co-workers. It also demonstrates that the court will disregard medical evidence based on illegitimate assumptions, even when it would be expected that the Plaintiff would receive a measure of sympathy.
Read more here.