Australia: Employer liable for threats to carer

Last Updated: 24 October 2016
Article by Olga Sashko

In Greenway v The Corporation of the Synod of the Diocese of Brisbane (2016) QDC 195, an employee was been awarded over $450,000.00 following an incident at work whereby she was subject to verbal abuse and physical aggression by a young person in her care. The employee sustained a psychiatric injury as a result of the incident.

Ms Greenway, the Plaintiff, was employed by the Corporation of the Synod of the Diocese of Brisbane, the Defendant, as a Residential Care Worker. She was required to provide care to young persons, between the ages of 12 and 17, with moderate to severe behavioural needs.

At the time of the incident, the Plaintiff was providing one-on-one care to a 15 year old young person, who had been assessed as having complex support needs. The young person verbally abused the Plaintiff, threatened to kill himself with a piece of sharp glass and threatened to kill someone else with the piece of glass, however, stating that someone else was not the Plaintiff. He did not physically injure the Plaintiff.

The Plaintiff was able to successfully utilise the techniques she was trained in by the Defendant to de-escalate the situation and clam the young person down. She then called her on-call person to report the incident.

The Plaintiff remained at the residential facility with the young person overnight and also provided care to him the following day. She did not return to work following this shift and sought treatment for a psychiatric injury.

The Plaintiff argued there were three precautions the Defendant could have adopted, but did not, which would have prevented her injury:

  1. The Defendant could have refused placement of the young person;
  2. The Defendant should have provided a second worker to care for the young person; and
  3. The Defendant should have ensured the Plaintiff was adequately trained before requiring she care for the young person alone.

Her Honour deemed a reasonable employer in the Defendant's position would not have refused placement of the young person. Her Honour also stated that a reasonable employer in the Defendant's position would not have engaged a second worker to take care of the young person. In relation to training, her Honour noted the Plaintiff had not made out a case that she was inadequately trained, nor was there evidence the incident occurred because of any deficiency in her training.

Nevertheless, her Honour found in favour of the Plaintiff stating that Defendant's response to the situation was inadequate. Despite the fact that it was concluded that the Plaintiff made no requests for assistance from her on-call person when the on-call person asked her whether she was ok, her Honour held that a reasonable employer in the position of the Defendant would have taken the following precautions:

  1. Established guidelines for on-call Team Leaders to support workers caring alone for young people with complex or extreme support needs; and
  2. Trained on call Team Leaders in how to assess a worker's welfare in the aftermath of a crisis, considering emotional and psychological issues, as well as physical safety.

Her Honour held the Defendant's breach was constituted by its failure to take the abovementioned precautions.

Her Honour could not disentangle the cause of the Plaintiff's injury. It was recorded that a combination of the incident itself (a major factor), the Plaintiff staying alone overnight with the young person (a factor) and the Plaintiff's feelings of being let down and unsupported (a possible factor) all have contributed to her injury.

Her Honour held that the Plaintiff did not need to prove that the Defendant's breach of duty was the sole cause of her injury, provided it was a necessary condition of the injury caused.

In another recent decision involving a Care Worker, Beven v Brisbane Youth Services Inc (2016) QSC 163, the Court ordered the Defendant to pay over $1.5 million in damages after it found the Defendant had breached its duty of care, resulting in an employee sustaining psychiatric injuries from a sexual assault.

In this case, the Plaintiff was employed as a Family Support Worker. At the time of the incident, she was providing care to a young mother, who had a history of drug abuse, sexualised behaviour and violence.

On the day of the incident, the young mother made sexualised comments and sexual advances towards the Plaintiff. The Plaintiff decompensated as a result. The Plaintiff alleged that the Defendant breached its duty of care to her by failing to provide a safe system of work, arguing that it was foreseeable that the young mother would sexually assault one of their employees.

The Court found that the Defendant knew that two other employees had stopped working with the young mother as a result of feeling unsafe due to her sexualised behaviour. Thus, the Court found that although the risk of the young mother sexually assaulting one of the Defendant's employees was not inevitable, it was foreseeable and that a reasonable employer would have taken precautions in an effort to avoid the risk.

Additionally, the Court found that it was foreseeable that an employee would suffer psychiatric injuries as a result of the sexual assault and stated that the employer should have ceased working with the young mother in order to prevent the risk of injury and protect its employees.

These decisions highlight the difficulty faces by not-for-profit organisations which are charged with assisting vulnerable people. The key message is that an employer's duty of care to its workers outweighs any duty to provide services to clients who represent a risk of injury to their workers.

WorkCover is appealing both of the above decisions. In relation to the matter of Greenway, WorkCover states that the primary judge erred in finding a breach of duty by the Employer and/or erred in finding that any breach of duty by the Employer was causative of the Plaintiff's loss. An ancillary argument concerns the assessment of damages in that matter.

So, expect the Court of Appeal to have the final say in both these matters.

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.

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