The importance of an employer’s duty of care to safeguard its employees, including risk from a third-party criminal act

14 November 2022
Warning: This article contains details about domestic violence and assault which may be upsetting for some readers. Reader discretion is advised.

An employer of an outreach worker was liable for injuries suffered following the criminal assault upon her allegedly committed by a client’s ex-husband.

In issue

  • The decision considered whether an employer’s duty of care extends to its employees for incidents ‘outside of work’.

The background

The plaintiff was employed by Nexus Primary Health (defendant) as a Family Violence Outreach Worker, which involved supporting clients who were victims of domestic violence.

In October 2011, the plaintiff’s client advised her that she had been assaulted by her violent ex-husband and during the assault, he had threatened to kill the plaintiff. The plaintiff reported the threat to the defendant and continued to work with and support the client. In January 2013, the plaintiff assisted the client by attending a court hearing where the client’s ex-husband was present.

In March 2013, the plaintiff was attacked by an unknown assailant as she was getting out of her car outside of her general practitioner’s clinic. Following the attack, the plaintiff received various letters containing threats and distressing content and had a brick thrown through the window of her family home.

As a result of the assault and threats, the plaintiff suffered psychological injuries and was unable to continue working. The plaintiff suspected that the person who assaulted her and sent the threatening material was the violent ex-husband of her client and brought a claim against the defendant for failing to prevent the assault from occurring.

The defendant argued it could not be concluded that the plaintiff had been assaulted by her client’s ex-husband and that it did not owe the plaintiff a duty to control a risk posed by the criminal offending of an unknown person. The defendant demonstrated it had a system in place for family violence outreach workers which included prompt intervention by the coordinator in respect of the allocation of workers to particular clients.

The decision at trial

The court held there was a real risk of violence faced by the Family Violence Outreach Workers as a consequence of their duties, and the nature and extent of that risk was or should have been known to the defendant. The court noted the defendant sought to address the risk via a process of formal supervision, management and coordination of the workers.

The court considered whether this case was distinguishable from Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, and addressed the issue of whether the defendant was required to control the conduct of others such as harm caused by the criminal acts of third parties or to provide a safe system of work by directing its workers.

The court held that based on the evidence, the plaintiff was assaulted in the incident on 27 March 2013 by her client’s ex-husband. It was held that the defendant owed a duty to the plaintiff to provide a safe system of work in all of the circumstances. Although the defendant had a system in place, it did not operate in the manner in which it was designed. To avoid the incident, the defendant should have re-allocated the file in October 2011, when the plaintiff first reported the threat. The defendant breached its duty of care owed to the plaintiff and this was a cause of the plaintiff’s injury, loss and damage.

Implications for you

The decision demonstrates that an employer’s duty of care to its employees can extend to protect against the actions of third parties. The decision also serves as a useful reminder to employers that they are required to respond to risks arising from the workplace by adopting safeguarding measures which identify and mitigate risks.

Where there is evidence of the employer’s failure to follow its systems designed to safeguard its employees, the court will most likely find that the employer has breached its duty of care.

Bell v Nexus Primary Health [2022] VSC 605

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