Employers' Duty to Protect Workers from Foreseeable Risks: Gilmour v Blue Care

The Queensland District Court has recently published a judgment which confirms that employers have a duty of care to ensure their entire workplaces are reasonably safe and that their employees must be adequately warned of any reasonable risk of harm, even if it is from a third party.

Background

The Plaintiff was employed by Blue Care as a personal carer, working at Lilliput Caring, a hostel accommodating 57 residents. Of the 57 residents, most were men with mental health and/or addiction problems. As a personal carer, the Plaintiff was to provide care and assistance to the residents regarding self-care and mobility. Residents were clients of various care providers, such as Blue Care.

Whilst undertaking her duties, another male resident, who was not a client of Blue Care, asked the Plaintiff to assist him to make his bed. The Plaintiff, who was working alone at the time, agreed to assist him and whilst helping the man, he sexually assaulted her.

The Plaintiff claimed that Blue Care had breached their duty of care by:

1. failing to undertake a risk assessment of Lilliput Caring;
2. failing to require the Blue Care employees to work in pairs;
3. failing to warn or instruct the Plaintiff as to the dangers associated with undertaking her work duties at the hostel; and
4. failing to provide a duress alarm.
   

Risk of Harm

The Court first considered the risk of harm that persons visiting the premises to provide care would suffer a sexual assault committed by a resident of the premises.

It was determined that Blue Care knew or ought to have known that the accommodation was provided to people with mental health difficulties. Further, it was established that some of the residents were subject
to treatment authorities and or had addiction problems.

The Court determined that, in today’s society, there is a genuine risk of sexual assault to a young woman working alone to provide care to men with mental health and addiction problems. As such, the risk of harm was foreseeable and not insignificant.

Risk Assessments

It was found that Blue Care had conducted risk assessments of their clients and limited risk assessment of the facility including lighting, ensuring clear pathways, and hazards. However, it was discovered that there was no assessment of the accommodation as a whole or the risk other non-Blue Care clients posed to Blue Care workers.

It was found that Blue Care workers had to access communal areas when performing their duties and, as such, Blue Care ought to have completed a risk assessment of the accommodation as a whole.

The Court held that Blue Care breached their duty of care to the Plaintiff by failing to perform its own risk assessment of the accommodation as a whole when it required the Plaintiff to work there.

Training and Orientation

It was found that 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 related to physical violence and promoting safe practices, such as maintaining exit strategies and engaging in positive communication. However, the training mainly focused on preventing physical altercations.

The Court determined that the training failed to address the specific risk of sexual violence, particularly relevant to women working alone in male-dominated or high-risk environments. The Court also determined that the training lacked focus on the erratic behaviours of such clients and patients.

Therefore, the Court held that Blue Care failed to provide adequate warning and training for the abovementioned risk of harm.

Decision and Amount of Claim 

Overall, the court was satisfied on balance that the Defendant’s breach of duty caused the Plaintiff’s injury.

There was no reduction for contributory negligence as the Court determined that the Plaintiff had not acted contrary to any instructions from Blue Care.

The Court assessed the Plaintiff’s claim at $239,272.98.

The Court noted that the Plaintiff had her first child after the subject incident and was pregnant with her second at the trial. It was accepted that the Plaintiff would have taken time off work to care for her children.

Although the Court accepted that the Plaintiff would be unlikely to return to work as a personal carer but, with time, she could return to full-time employment with a potential loss of $100.00 per week. Accordingly, the Court allowed $120,000.00 for future economic loss.

How We Can Help

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Workers Compensation legislation. If you are dissatisfied with your current representation, our experts can also offer a second opinion.

If you, or know someone has been injured at work or is unhappy with a decision of WorkCover, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical
legal advice on how you should proceed.