Duty of care for personal care employer extends to sexual assault occasioned to its employee

Blue Care, an employer of personal carers, was found liable in negligence for the failure to implement a safe system of work, which resulted in an employee being sexually assaulted by a resident of a hostel where she was placed to work.

In issue

• The Queensland District Court considered the appropriate system of work to be implemented for a personal care employer to address the risk of sexual assault being occasioned to workers placed at a hostel which housed men with addiction problems and mental health issues.

The background

The plaintiff was employed by the defendant, Blue Care, as a personal carer. She was placed to work at Lilliput Caring, a hostel predominantly housing men with mental health and/or addiction problems. Whilst performing that work, another resident who was not a client of Blue Care asked the plaintiff to assist him in making his bed. Whilst doing so, the resident sexually assaulted the plaintiff.

The plaintiff sued Blue Care in negligence, alleging that it failed to implement a safe system of work, which caused the plaintiff to be sexually assaulted and to sustain a psychological injury thereafter.

The decision at trial

Loury KC DCJ found the defendant liable in negligence for its failure to:

• conduct an appropriate and effective risk assessment of the hostel,
• require the employees to attend and work in pairs, and
• to warn or instruct the plaintiff as to the dangers associated with undertaking her work duties at the hostel.

In respect of the risk assessments, although risk assessments had been conducted for Blue Care clients in the hostel, the trial judge found that the defendant failed to conduct a risk assessment of the hostel as a whole. Her Honour found that a risk assessment of the facility as a whole would have relevantly revealed that:

• many residents experienced mental health problems and chronic addiction problems,
• residents may have been the subject of a Treatment Authority (being an authority issued under the Mental Health Act 2016 where a person does not have capacity to consent to treatment for a mental illness, with the result being that they are more prone to cause imminent serious harm), and
• most of the residents were men and the carers were required to move throughout the hostel into communal areas in order to perform their services.

Loury KC DCJ ultimately determined that a risk assessment would have alerted the defendant to the possibility of unpredictable and irrational behaviour by a resident in the hostel.

In respect of training procedures, Loury KC DCJ found that the defendant failed to provide training which appropriately focused on preventing sexual violence at Lilliput Caring. Her Honour also found that the training was not specialised to provide guidance for dealing with persons suffering from significant mental illness or chronic addiction problems.

Lastly, Loury KC DCJ found that the defendant ought to have required employees to work in pairs because the facility housed only men with mental health and addiction problems who were able to freely move around the premises. Her Honour considered that the defendant would have implemented such a system of work if an appropriate risk assessment of the facility was undertaken. Her Honour also found that the sexual assault would not have occurred if the plaintiff was working with someone, noting that the CCTV footage demonstrated that the assailant loitered in his doorway to observe the plaintiff prior to sexually assaulting the plaintiff.

Loury KC DCJ refused to make any reduction for contributory negligence, relevantly noting that the plaintiff was unaware whether the assailant was a client of the defendant at the time she entered his room and did not know what risk he presented. The trial judge reiterated that the training provided to the plaintiff was deficient because it failed to address the risk of sexual assault with the result being that the plaintiff was not equipped to avoid the incident herself.

The plaintiff was ultimately awarded $239,272.98 in damages for the psychological injury she sustained.

Implications for you

The decision of Loury KC DCJ emphasises the requirement that employers ensure that risk assessments fulsomely contemplate all potential risks faced by its employees. For employers in the care industry, the judgment highlights the importance of appropriately training employees to avoid the risk of sexual assault from care residents, not just physical assault. Lastly, the decision indicates that there may be a necessity for care employers to require employees to work in pairs, if a risk assessment of the specific care facility suggests it is necessary.