Keywords
Torts – negligence – personal injury – workplace injury – PTSD – duties undertaken at an external site not operated by the employer –criminal behaviour of a third party – a risk assessment of the external site – where the plaintiff did not receive training directed at the risk of sexual assault in the workplace
Facts
The plaintiff was employed by Blue Care as a personal carer. Blue Care directed the plaintiff to attend at Lilliput Caring, a hostel accommodating 57 residents, with the vast majority being men with mental health and/or addiction problems.
The plaintiff was to provide personal care to a Blue Care client who resided in the facility. Whilst undertaking her duties, another man who was not a client of Blue Care, asked the plaintiff to assist him to make his bed. The plaintiff agreed to assist him and entered his room. He then sexually assaulted her.
The plaintiff claimed that Blue Care had breached their duty of care by failing to undertake a risk assessment of Lilliput Caring, failing to require the Blue Care employees to work in pairs, failing to warn or instruct the plaintiff as to the dangers associated with undertaking her work duties at the hostel and failing to provide a duress alarm.
Decision
Loury KC DCJ, decision delivered 1 November 2024,
Judgment for the plaintiff against the defendant in the amount of $239,272.98
Ratio
Her Honour firstly considered what was the risk of harm. She held that the relevant risk needed to be formulated to reflect the type of harm that eventuated, a risk that persons visiting the hostel to provide care would suffer a sexual assault committed by a resident of the hostel.
Blue Care ought to have known that Lilliput Caring provided accommodation to people with mental health difficulties, some of which were subject to treatment authorities and to people with addiction problems.
Her Honour noted that, in today’s society, there was a genuine risk of sexual assault to a young woman working alone in a hostel accommodating men with mental health and addiction problems. As such, the risk was foreseeable and not insignificant.
Whilst Blue Care had undertaken risk assessments of their clients and limited risk assessment of the facility including lighting, ensuring clear pathways, and hazards, there was no assessment of the hostel as a whole and the risk other non-Blue Care clients posed to Blue Care workers.
It was noted that Blue Care workers had to access and enter communal areas when performing their duties and, as such, Blue Care ought to have completed a risk assessment of the Lilliput Caring facility. Her Honour held that Blue Care breached their duty of care to the plaintiff by failing to perform its own risk assessment of the hostel when it required the plaintiff to work at the hostel.
The defendant, Blue Care, recognised potential safety risks to employees when working with clients and provided various training modules, including orientation, lone worker, and conflict awareness training.
This training emphasised dynamic risk assessments to mitigate physical violence and conflict by promoting safe practices, such as maintaining exit strategies and engaging in positive communication.
However, the training mainly focused on preventing physical altercations and failed to address the specific risk of sexual violence, particularly relevant to women working alone in male-dominated or high-risk environments. The definition of workplace violence used in the training covered threats and physical assault but did not adequately encompass sexual assault.
Blue Care’s training also lacked focus on the unpredictable behaviours associated with severe mental illnesses or chronic addictions, and the facility’s general risk assessments did not extend to assessing the danger posed by the facility itself.
Consequently, Her Honour found that Blue Care failed to provide adequate training or warnings to prepare employees for the dangers present at Lilliput Caring.
The plaintiff argued that a duress alarm should have been provided as a potential deterrent against sexual assault.
However, the court found that such an alarm would not prevent or deter an assault in unpredictable situations involving residents with serious mental illnesses or addictions, who may act irrationally.
As duress alarms could not summon immediate assistance in time to prevent an assault, the court concluded that Blue Care did not breach its duty of care by failing to provide one.
The plaintiff also argued that Blue Care should have implemented a system requiring two workers to attend and work in close proximity to one another, enhancing safety, especially when working with clients in communal areas with unpredictable residents.
After the assault, Blue Care adopted this practice, pairing workers for safety. Although Blue Care initially argued that prior incidents hadn’t justified this precaution, the court found that, given the risks present in the environment, a two-worker system should have been in place to help guard against foreseeable risks of violence or assault.
Overall, the court was satisfied on balance that the defendant’s breach of duty caused the plaintiff’s injury and there was no reduction for contributory negligence as she had not acted contrary to any instructions she was given – at most her conduct was inadvertence.
Quantum was assessed at $239,272.98. Relevantly, she had her first child after the subject incident and was pregnant with her second at the trial. It was accepted that she would have taken time off work to care for her children.
Her Honour noted that she would unlikely return to work as a personal carer but, with time, she could return to full-time employment with a potential loss of $100 per week. Accordingly, she allowed $120,000 on a global basis for future economic loss.
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