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Support and care providers: assessing the risk of injury to workers

Organisations operating in the care and disability sectors and their workers are often susceptible to being exposed to challenging and potentially aggressive individuals.

Employers have a legal duty to their workers to provide and maintain a safe work environment, so far as is reasonably practicable. The fact that the worker is aware of the risk when accepting the job does not release the employer from its duty of care to ensure the safety of the workplace.

The risk of injury arising from workers dealing with aggression from individuals can often be minimised through effective risk management planning and providing appropriate training.

To assist with understanding the employer’s legal duty to its employees and highlight the importance of having in place a safe system of work to reasonably avoid the risk of injury to workers, we have summarised two of the leading cases in this sector.

Case summary: The employer was not found liable for the individual’s assault against the worker

The worker was employed as a support worker for a not for profit organisation, House With No Steps, providing disability services (Stokes v House With No Steps [2016] QSC 79). The worker was an experienced carer having worked in the industry for a number of years. The house had one care worker supporting two individuals. Prior to the incident, the worker had worked in the house for 8 months.

On the date of the incident, the worker left the table where she was sitting with an individual to go to the office for a short time. When she returned, the individual was standing and had an upturned plate in his mouth. The worker, being concerned they might break the plate and cut his mouth, tried to take the plate. The individual suddenly lunged at her, grabbed her throat and shook her, which resulted in the worker sustaining some physical injuries and a psychiatric injury.

In this case, it was found the employer knew of the risk of injury to the worker, as it had specifically been considered in the individual’s Positive Behaviour Support Plan (Plan). Given the individual’s challenging behaviours and history of causing minor injuries to other carers (which only required first aid) in the 12 months prior to the Plan being prepared, the Court found it was likely the individual would behave in such a way that would cause some physical injury to the worker.

There was evidence lead by the employer that it did not have the means to provide for a second carer at the house. The Court was prepared to find that a reasonable person in the position of the employer would not have employed a second carer.

Therefore, the worker was unsuccessful in proving that any breach of duty by the employer caused her loss.

Case summary: The employer was found liable for the individual’s assault against the worker

The worker was a family support worker employed by an organisation, Brisbane Youth Services, that provided counselling and support services to homeless and drug affected young people (Beven v Brisbane Youth Service Inc [2017] QCA 211). The worker’s role was to provide support and advocate for young homeless parents.

This individual had a history of sexual advances towards workers. Two of the employer’s workers had previously refused to continue working with the particular individual. The worker met with the individual in their home and at other places on multiple occasions. During a meeting with the worker, the individual made sexual advances towards the worker and as a result the worker sustained a psychiatric injury.

At first instance, the trial judge decided in favour of the worker. The employer then appealed the decision. On appeal, the employer argued the Court failed to have regard to:

  • the services the worker provided to the individual were not services provided as an intensive support worker;
  • the absence of any prior history of physical assaults by the individual;
  • the worker’s extensive background and experience as a social worker;
  • the worker’s access to resources of, and advice from, the employer; and
  • the worker’s prior knowledge of the sexualised behaviour of the individual towards other employees.

Part of the employer’s response was that the risks involved upon working with the individual were inherent in the worker’s occupation as a social worker. The employer alleged the worker, by taking on the job and, in particular, by offering to work with the individual, had asserted her competence to do this skilled work with such people, and with the individual, and had therefore accepted a professional risk of the kind that occurred.

The Court of Appeal upheld the Supreme Court’s decision to award the worker more than $1.5 million.

Justice Sofronoff, in the majority judgement, stated it was not self-evident that social workers implicitly accept the sole obligation of assessing the information available to them, the risk of injury when undertaking work with an individual so as to release the employer from the duty to ensure the safety of the workplace. Justice Sofronoff emphasised that an employer has a duty of care to consider whether an employee should be permitted to undertake risks in such cases despite the employee’s willingness to do the work involving risk and the employee’s professional judgment that the risk is worth running. It was found the employer knew the risks the individual presented to its staff, and the employer also had an appreciation of its own dealings with some of the problems the individual presented and knowledge of other services that were better suited.

The worker also satisfied the Court that the employer was responsible for the injuries sustained. While it was found the worker had a pre-existing vulnerability because of her childhood history of abuse, which she did not reveal to the employer, the medical evidence supported that any prior psychiatric disturbance due to these historical events had “well and truly settled” prior to the assault.

The majority judgment upheld the decision of the trial judge, that a reasonable precaution to avoid the risk of harm would have been for the employer to cease offering services to the individual. Justice Sofronoff stated there were other services that could have met the needs of the individual and the employer’s failure to send the person to another service was a breach of its duty of care to the worker and caused her injuries. 

Key takeaways

Care providers and support organisations need to be vigilant in establishing a system of work that is appropriate for each person they provide services to..

Even experienced workers need protection and are not assumed to have accepted the risk of injury while they have to deal with challenging and aggressive individuals. 

To minimise the risk of injury to workers, it is imperative that you:

  • do a risk assessment of the work environment;
  • provide training to equip workers with the skills required to work with individuals who have challenging behaviour; and
  • communicate relevant information about each individual to the workers.

Should you have any questions about your legal obligations to protect your employees, or if you would like to find out more about what steps you can take to reduce the risk of injury to workers, please contact the Mullins team.

Article written by Tony Rosenthal (Partner) and Nadine Wardell (Solicitor).

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."