What happened

Shaw, a resident at the park, reported inappropriate touching and repeated harassment by the caretaker. The court found that complaints reached management, but the attempted separation was ineffective and harassment continued. Pre-existing psychiatric vulnerability and other events also affected the damages assessment.

The issues

The issues included the precautions required after management learned of the risk, the caretaker's relationship with the company, and the psychiatric injury attributable to its inaction. The court also considered the statutory normal-fortitude requirement for mental harm.

The court's decision

The court found that the occupier could control the caretaker's presence and should have ended his engagement and excluded him from the park. Liability rested on the occupier's own negligence after notice, excluding damage from the first incident itself. Judgment and costs were ordered against the second defendant.

Understanding the figures

The historical judgment against the occupier was AUD $33,513.15: $18,200 for non-economic loss, $10,000 for economic loss, $2,813.15 for past expenses and $2,500 for future treatment. The assessment principally concerned a closed period from late 2007 to 2009, with allowance for continuing vulnerability.

What this case shows

Failure of a vicarious-liability claim did not prevent liability for the occupier's own failure to respond to a known risk. Pre-existing illness did not defeat recovery, but the assessment had to isolate the worsening attributable to the events for which the occupier was responsible.

Why another case may differ

This is a 2011 application of the Civil Liability Act 2002 and the vicarious-liability authorities then considered. It should not be treated as a statement of all later developments in employment or vicarious liability. The named first defendant was never served; the damages judgment was against the occupier.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

Considering a second opinion? →