iscover
Recent horrific attacks have raised questions about whether employers can be liable for random acts of violence, writes Candice Heisler.
There have been some tragic reports in the news of late with increased incidences of violent crime in shopping centres and retail spaces, particularly involving knives.
Work-related violence and aggression often involve the criminal act of someone from outside of the workplace, such as that occurred in the Westfield Bondi Junction attack and, more recently, with the Coles worker who was stabbed during the course of her employment in a seemingly random and violent attack.
This begs the question of whether an employer is liable for these random acts of violence. The outcome may depend on the discrete factual circumstances in any individual incident.
The duty of care of employers
Workplace health and safety laws are designed to ensure the health and safety of workers and others in the workplace. In Queensland, the Work Health and Safety Act 2011 says the primary duty of the business owner or employer is to ensure, so far as reasonably practicable, the health and safety of workers.
Work-related violence and aggression in the workplace are not new, and they include not only physical assault and sexual assault but also harassment or aggressive behaviour that creates a fear of violence and aggression. It extends to things like stalking, hazing, and gender-based violence and aggression etc.
There are some industries that certainly may be considered “higher risk” for work-related violence than others. Some comparisons may be drawn to first responders and workers in the healthcare, pharmacies, service station, hospitality, and banking environments that may have an increased risk of exposure to workplace violence and aggression due to a range of different psychosocial risk factors. That said, the courts must still consider what is reasonable in the circumstances of each particular case.
In the Queensland Court of Appeal decision of Lusk v Sapwell [2011] QCA 59, the Court of Appeal overturned the decision of the trial judge, which found in favour of an employee suffering a psychiatric injury consequential upon a sexual assault committed by a customer of an optometry store. The Court of Appeal found that 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 (which included a locking door, infrared beam, signage about CCTV system) had been taken, it was not unreasonable for the employer not to take any such precaution. The court also found that even if those precautions were taken, it was more probable than not that the attack would have still occurred.
Workplace violence in the retail sector
Concerningly, it would appear that there is a rise in violence in the retail sector, which is acknowledged by Workplace Health and Safety Queensland (WHSQ). In fact, WHSQ has identified a 114 per cent increase in work-related violence claims in retail generally, and in Queensland, there was an 81 per cent increase.
Employers would be required as part of their duty of care to their employees to ensure a risk assessment is undertaken to identify any indicators for an increase in work-related violence and aggression and take steps to minimise or reduce those risks. This could include controlling risk by considering environmental controls – such as limiting the amount of cash kept on the premises, medications kept on the premises, security measures such as security guards, duress alarms, video surveillance, avoiding the need for workers to work in isolation, appropriately controlled access when people are working alone at night and preventing access to dangerous objects, as suggested by WHSQ.
The recent incident in Yamanto has been reported as a completely random attack in which the alleged offender is reported to have taken a knife off the shelves of the supermarket in which the victim worked, before stabbing her while she was stocking a fridge at the back of the store.
As that worker sustained the injuries during the course of her employment, a workers’ compensation statutory claim would be available to her. But what about the liability of the employer to foresee that a “customer” or any person entering the store may take a knife from the shelves and stab anyone (including a staff member) within the store? Could they foresee this risk of injury?
Jack’s Laws were introduced in Queensland on 30 March 2023, as an initiative of the Queensland government for the Queensland Police Service to prevent knife crime after the tragic death of Jack Beasley in 2019. Jack’s Law gives power to police to use handheld metal detectors without a warrant in shopping and retail centres, at sporting and entertainment venues, in safe night precincts, at licensed premises, and on public transport. On 15 December 2024, the Queensland government announced that these powers would become permanent.
Additionally, in September 2024, Jack’s Law brought about changes for commercial sellers responsible for selling dangerous or “controlled” items, with the Queensland government taking steps to create offences for commercial sellers about selling knives and other controlled items. Section 19 of the Summary Offences Act 2005 (Qld) was amended to ban the sale of knives to anyone under 18, and it also required retailers to have clear signage displayed regarding the age-restricted items and to control the sale of restricted items by securely storing them in a locked room, cage, cabinet, or container or to be securely tethered.
In October 2021, Woolworths stated that it had at least temporarily restricted access to the sale of knives to most of its stores after a security guard and a customer were stabbed in Melbourne’s inner north. At that time, Woolworths announced that it was conducting a risk assessment of its store safety controls. It seems that Woolworths reintroduced a smaller range, but many stores then permanently removed knives from their shelves.
Given these well-publicised and serious incidents, it would appear that it is reasonably foreseeable to a retail or supermarket employer that its workers could be the victim of work-related aggression, including knife crime, during the course of their employment.
That being the case, what steps could a retail or supermarket employer take in response to the risk? The employer needs to consider the magnitude of the risk and the degree of probability of it occurring, along with the expense, difficulty, and inconvenience of taking alleviating action as well as other conflicting responsibilities.
By way of example, Coles has now removed knives from sale across its supermarket stores Australia-wide. Such a quick response would seem to suggest that there was little (or at least not prohibitive) expense, difficulty, or inconvenience for them to take such steps. However, it could have been as simple as locking the knives in a secured cupboard that required customers to contact a staff member to access for purchase, and this would also enable staff to see acceptable evidence of age before selling and other similar measures to limit access to knives. Supermarkets already have some of these facilities available for other controlled items such as razor blades and cigarettes.
If there is then a breach of the duty of care, a consideration of factual causation will be undertaken to determine whether any control or other security or safety measures could have deterred a potential violent event from occurring.
I would suggest that if knives were not easily accessible for sale by simply taking them from the shelves, putting them either behind the service desk or in a lockable cupboard only accessible by staff, this likely would have prevented a violent offender from accessing a dangerous item like a kitchen knife, and then perhaps in this scenario, the retail worker may not have sustained the life-threatening injuries she did.
Any injuries sustained as the consequence of work-related violence and aggression are very fact-specific and require an evaluation of the nature of the workplace, the risk of violence and aggression, past instances of violence and aggression, any risk assessments conducted by a workplace, and any security or other measures that may minimise the risk of violence in the workplace.
Candice Heisler is a senior associate at Travis Schultz & Partners.
