On 13 June 2021, the Plaintiff, a 33 year old disability support worker, was performing her employment duties providing care to an intellectually disabled client (who we will refer to as “C”) who was violent and abusive to the Plaintiff over a period of hours.
The Plaintiff had been providing care to C for some months, and over that period, the client’s adverse behaviour had escalated.
There had been previous violent or abusive incidents involving C, both for the Plaintiff herself and co-workers. On one of these previous occasions, on 8 May 2021, the Plaintiff reported some psychological impact from this incident, and she took a night off to “reset”.
The Plaintiff’s employer was aware of the previous incidents involving C and more specifically, the event on 8 May 2021. It devised a Positive Behaviour Support Plan, Employee Action Plan, Behaviour Register and Risk Assessment to deal with this errant behaviour.
The Plaintiff also alleged she had inquired as to whether she could be placed with a different client which the employer disputed.
The Trial ran before Justice Lynham in the Townville, District Court with both liability and quantum in dispute.
On 1 April 2025, Lynham DCJ delivered their decision in favour of the Plaintiff, awarding damages in the sum of $670,545.48.
His Honour relevantly found:
- the employer owed the Plaintiff a duty of care to take reasonable precautions against foreseeable risks of injury associated with the care of C;
- it was foreseeable that a care worker could suffer physical or psychological injury as a result of the violent or abusive behaviour and conduct of C;
- the employer breached that duty by failing to modify the Plaintiff’s duties by assigning her to a different client after the event of 8 May 2021;
- had the employer modified the Plaintiff’s duties by assigning her to a different client, the Plaintiff would not have been subject to the event of 13 June 2021, and thus she would not have sustained the subject psychological injury.
A preliminary issue raised in the judgment was the attack made upon the Plaintiff’s credit due to differing accounts she had provided in the course of her pre-court claim. His Honour acknowledged these differences, but considered them to be of limited effect. He further found that the Plaintiff was a generally credible and honest witness.
As to breach of duty, three principal breaches were alleged by the Plaintiff. However, only one was found, namely a failure to reassign the Plaintiff to a different client, in order to provide her with relief from dealing with C.
The case advanced for the employer was that it had implemented multiple measures designed to provide an adequate response to the risk of employees being injured through dealing with abusive or violent behaviour by C. The employer produced documents which demonstrated the training and instruction provided to the Plaintiff and other workers, and argued these were reasonable responses to the risks associated with caring for volatile clients such as C.
His Honour found that those actions were not a reasonable response to the relevant risk of injury. His Honour found the Plaintiff’s particular circumstances warranted her being relieved of the requirement to care for C, at least for a period of time, as a reasonable precaution to minimise the risk of injury to her (either physically or psychologically). This kind of rotation is consistent with the recent approach taken by the High Court in Kozarov v Victoria (2022) 273 CLR 115.
As to causation, His Honour found if the Plaintiff had been given the opportunity to care for a different client, she would have taken up that opportunity and thus not been injured.
The argument advanced for the employer was that, given the Plaintiff’s conduct in only taking one night off after the event of 8 May 2021, and then returning without complaint after that one night to her duties caring for C, without requesting alternative duties, she was unlikely to have required or accepted a change of duties.
The latter point, about the absence of a request for alternative duties, was the subject of disputed evidence. However, notwithstanding that dispute, His Honour found that the employer’s duty (as an employer) required action to protect the Plaintiff irrespective of whether she made such a request or not. The duty of an employer is not to act in response to notice of risk, but to guard against risks, prospectively.
His Honour identified that the Plaintiff’s alternative ground of breach of duty, namely shared or rotational care of C for half of her weekly shifts, could not establish causation to the subject event, as she may well have still been rostered with C on the night in question.
This case highlights that the duty of care required of an employer to its employees in respect of mental health in the workplace, particularly so in the case of workers in high risk roles such as disability support.
Whilst the employer in this case demonstrated a systematic approach to managing psychosocial risks in the workplace, the missing proactive step of protecting its employees from the risk of psychological injury in the workplace by removing the Plaintiff from the client’s care rotation following the earlier events of adverse behaviour was critical to the ultimate outcome at Trial.
