Australia: Employer found not liable for client assault on disability support worker at residential care facility

Earlier this month, Queensland's Supreme Court found in favour of an employer in a common law claim for damages brought by a carer who was assaulted by a client at a residential care facility operated by the employer. Both the employer and its workers' compensation insurer were represented by Senior Associate Anna Hendry in this claim which, in addition to highlighting the importance for an injured worker to establish causation, discussed the utility of various preventative measures relied upon by the injured worker as a basis for asserting negligence against the employer.

In this alert, Partner Robert Tidbury and Solicitor Matthew Boyce, discuss the case of Stokes v House With No Steps [2016] QSC 79.

Key Points

  • In addition to proving that the employer was in breach of its duty of care, the injured worker must establish causation in order to succeed on liability.
  • The fact that the plaintiff can point to various measures which, had they been implemented, may have made the workplace safer generally, is not by itself sufficient to establish causation. Instead, the injured worker must show that those measures would have prevented or minimised the risk of injury complained of.
  • The defendant's evidence - that it was a not for profit organisation which could not afford the placement of a second carer at the residential care facility - was crucial to the Court's decision that the burden of taking this particular precaution was excessive for the purposes of section 305B(2)(c) of the Workers' Compensation and Rehabilitation Act 2003. It was accepted by the court that a reasonable person in the position of the defendant would not have employed a second carer at the facility.


The plaintiff was employed as a disability support worker for House With No Steps (HWNS), a non-profit, non-governmental organisation which provides disability services to the Queensland Department of Communities, Child Safety and Disability Services. She worked at a HWNS-managed property in Deception Bay which housed two clients and one carer at all times. One of these clients, NM, had been diagnosed with a Severe Intellectual Disability and Autism Spectrum Disorder. NM was known to unexpectedly grab, bite and scratch carers.

On 15 August 2010, the plaintiff was sitting at a table with NM and the other resident of the house. The plaintiff briefly went to her office before returning to the table. Upon her return, she found NM biting down on a plate. Concerned he may cut himself, the plaintiff attempted to take the plate. Suddenly, and without warning, NM lunged at the plaintiff and grabbed her around the throat. NM shook the plaintiff and attempted to bite her as she struggled to remove his grip.

The plaintiff eventually secured both of NM's hands by his side during the struggle. Once NM settled down, the plaintiff locked herself in the house's office, which required a key to enter. As a result of the incident, the plaintiff suffered some minor physical injuries and a psychiatric injury. The plaintiff has been unable to work since the incident.

Duty of Care Issues

The plaintiff alleged HWNS had breached its duty of care by:

  • failing to employ a second carer to help manage and care for NM;
  • failing to equip the plaintiff with a portable alert transmission advice or duress alarm; and
  • failing to provide "swipe card" access to the office.

In regard to the first allegation, the Court had to consider whether a reasonable person in the position of the defendant should have either employed a second carer, or placed NM at a different location with a higher carer-to-client ratio. Evidence was adduced which suggested placing a second carer on a 24 hour basis would have cost HWNS in excess of $220,000.00 per year. The defendant subsequently submitted it was neither reasonable nor affordable for it to have employed a second carer at the facility.

Conversely, the plaintiff argued the defendant's standard of care ought to be measured by reference to what an employer with adequate resources would have done in the situation.1 His Honour rejected this submission and pointed to the significant social utility of organisations, such as the employer, caring for clients like NM. Further, His Honour observed there was no evidence to suggest NM's needs were not being met in the Deception Bay residence. As such, a reasonable person in the position of the employer would not have employed a second carer in view of the excessive expense involved, nor would they have removed NM from the residence. No breach of duty was found in relation to this allegation.

By contrast, His Honour found the defendant had breached its duty of care by failing to implement the second and third measures raised by the plaintiff. In the absence of a second carer, those measures were found to be both reasonable and relatively inexpensive precautions in view of the noted behavioural history of NM.

Causation Issues

While the Court found that the defendant was in breach of the duty of care it owed to the plaintiff, the defendant was successful in defending liability. This was because the plaintiff was unable to establish that her employer's breach of duty caused the injuries she inevitably suffered.

In relation to the failure to provide a duress alarm, it was noted the nearest police station was 5.8km away. However, the plaintiff adduced no evidence to enable the Court to determine how long a police response may have taken had such an alarm been used. Therefore, it was not proven "to any degree of likelihood that the plaintiff would have been assisted in time" or whether police intervening before the incident's eventual conclusion would have prevented the loss and damage she suffered.

Likewise, in respect to the failure to provide swipe card access to the office, His Honour noted that the claimant did not seek refuge in the office until after the incident's occurrence. Therefore, the Court remained unpersuaded that the plaintiff would have opted to "make a run for the office" if there had been quicker access to that room using a swipe access card. Furthermore, the Court concluded it was just as likely the plaintiff would have not released her hold on NM until he had settled down enough so that she could safely approach the door without risk of a further assault. As such, the failure to provide swipe card access to the office was not found to have been causative of the plaintiff's injuries.

His Honour dismissed the claim.


1 PQ v Australian Red Cross Society [1992] 1 VR 19

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Anna Hendry
Matthew Boyce
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.