Court of Appeal finds employer liable for psychological injury suffered by family support worker05 October 2017 Topics: Insurance, Self-insurance, Workers’ compensation
In the recent case of Brisbane Youth Service Inc v Beven  QCA 211, a majority of the Queensland Court of Appeal found that an employer was negligent in allowing a family support worker, Ms Beven, to provide support services to a client who then assaulted her, which resulted in Ms Beven suffering a psychological injury.
The employer provided support services to homeless and at-risk young parents and their children. A client of the employer was a young woman, referred to in the judgment as ‘T’. T had a history of mental health issues, violence and sexualised behaviours.
Before Ms Beven’s involvement with her, T had engaged in sexualised behaviour towards other employees and had made comments to them of a sexual nature. Those employees ultimately refused to work with her any further.
Ms Beven was employed as a family support worker and she began working with T, providing support to T in her dealings with the Department of Child Safety.
In April 2011, T sexually assaulted Ms Beven during a meeting with T’s mother, T’s solicitor and two representatives from the Department. The effect of this assault on Ms Beven was heightened as she, as a child, had been a victim of abuse. After this incident, Ms Beven took time off work and was never well enough to return.
At first instance, Justice Atkinson of the Supreme Court found in favour of Ms Beven, who was awarded $1.5 million in damages. This decision was appealed by the employer.
President Sofronoff of the Court of Appeal, with whom Justice Gotterson agreed, dismissed the appeal.
His Honour was satisfied that the risk of assault, including sexual assault, was reasonably foreseeable considering T’s past interactions with other employees. Further, the risk of psychological injury was foreseeable as it is well-known that this sort of injury is often the result of a sexual assault. President Sofronoff was unconvinced by the employer’s argument that it was not reasonably foreseeable that T would commit a sexual assault at a formal meeting, arguing that sexual assaults can occur in unlikely, and public, places and that T was prone to episodes of irrational sexual behaviour.
His Honour thought that a reasonable precaution in this case would have been for the employer to stop offering services to T altogether. Relevantly, his Honour noted that other medical professionals or government funded services could have assisted T, and therefore there would have still been support available to her.
Justice McMurdo dissented, having concluded that the employer had not breached its duty of care to Ms Beven.
His Honour found that the risk that Ms Beven would suffer an injury from something that happened during this meeting, according to what was known or ought to have been known by the employer, was slight, indeed it was insignificant. He reasoned as follows:
- This was an apparently safe environment, considering the numerous people that were in attendance (including T’s mother and lawyer) and the reasonable expectation that T would want to present herself favourably to officers of the Department.
- Ms Beven’s vulnerability from her abuse as a child and her mental condition that had resulted was a factor that had increased the likelihood that she would suffer a psychiatric injury. However, the employer was not aware of this history.
In approaching the question of what reasonable precautions should have been taken in this case, his Honour noted that:
The appellant’s duty was not to do whatever was necessary to ensure that its employees were completely safe; rather it was to respond reasonably to the relevant risk.
Considering the degree of risk here, Justice McMurdo thought it would have been an ‘unreasonable constraint’ on the employer to require it to withdraw its services completely.
He acknowledged that the risk of injury would have been higher where employees were meeting with T at her home, and alone. However, even in that situation, a reasonable precaution would have been to direct Ms Beven to not meet with T in that environment.
Lessons for employers
The extent of this decision’s impact on organisations that deliver services to high-risk individuals is not yet known. However, the findings of the majority would suggest that, if these providers are to avoid breaching their duty of care to their employees, it may not be enough to tailor the delivery of those services to avoid situations that are obviously risky. They may need to withdraw their services altogether.