No knowledge, no liability for employer in sexual assault case

Date: October 12, 2016


Polichronis v Teys Australia Food Solutions Pty Ltd [2016] QDC 225

Key Points


The Plaintiff was a meatworker who was the victim of a serious sexual assault committed by a co-worker as she was walking from the employer’s carpark to its factory.  She did not pursue a claim against the assailant but pursued a claim against the employer on the basis that it:

The Plaintiff’s case was that prior to the assault, the assailant and two other workers regularly committed “indecent/sexual assaults” which included “cupping her bottom, pinching, slapping, staring and similar behaviour”.

The Plaintiff called two former co-workers to give evidence, but neither supported the Plaintiff’s allegations.  The first witness the Plaintiff called said the Plaintiff had told her that the assailant had passed dirty messages to her.  Crucially, the witness did not say she had witnessed any inappropriate touching by anyone or that the Plaintiff had complained about such behaviour.

The second witness said he had observed the Plaintiff speaking to the assailant once or twice per day. Despite the witness being engaged in an extra-marital affair with the Plaintiff, he said the Plaintiff had not made any complaints about the assailant’s conduct.

The Plaintiff herself gave evidence that she complained to her supervisor about the assailant on several occasions and that the supervisor would tell him three or four times a day to leave her alone.


In addition to the Plaintiff’s evidence, her Honour found that:

Crucially, the employer conducted a thorough investigation immediately following the assault.  The Plaintiff’s first statement was that the assailant’s behaviour prior to the incident was only verbal and that she had not told anyone about it.

Therefore the Plaintiff’s case failed as there was no evidence that the employer was on notice that the assailant had a history of misconduct which would alert the employer to the risk of assault.

Medical causation

Dr Nandam’s evidence for the Plaintiff was that she had developed Post Traumatic Stress Disorder (PTSD) and cannabis dependence as a result of the incident.

However, her Honour preferred the opinion of Dr Kar who, whilst accepting the Plaintiff would have suffered significant stress as a result of the incident, considered her problems were due to a pre-existing borderline personality disorder that had been aggravated by her longstanding cannabis use.

Her Honour found that Dr Nandam had placed considerable emphasis on matters about which Her Honour did not accept.  In particular that:

Lessons Learnt

This case demonstrates that Plaintiffs will continue to face significant difficulty establishing liability against employers for the criminal conduct of co-workers.

The employer’s successful defence of this claim was largely due to its prudent decision to conduct a thorough contemporaneous investigation.  The Plaintiff’s first statement that she had not reported the assailant’s lewd comments was fatal to her attempt to allege at trial six years later that the employer was on notice of serious systemic abuse within the workplace.

This case also demonstrates that even where one would expect the Plaintiff would receive significant sympathy, a court will not be afraid to disregard expert medical evidence which is based upon demonstrably untrue assumptions.


For more information on this article, please contact:


Chris Murphy
T: +61 (0) 7 3307 5504
M: 0405 537 425


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