Brisbane Youth Service Inc v Beven [2017] QCA 211

Further to my earlier post the employer appealed the decision of Atkinson J based on whether [114]:

(a) There was a foreseeable and not insignificant risk;

(b) That a particular employee, the respondent;

(c) In providing court advocacy services, away from T’s home and a 10 week home education program of 1 to 1.5 hours duration per week in T’s home;

(d) May suffer a purely psychiatric injury;

(e) In consequence of T’s sexually assaulting her.

[115] In aid of this ground, the appellant also submits that there was an error on the part of her Honour in failing to have regard to:

(a) The fact that the services that the respondent provided to T were not services provided as an intensive support worker;

(b) The absence of any prior history of physical assaults by T;

(c) The respondent’s extensive background and experience as a social worker;

(d) The respondent’s access to resources of, and advice from, the appellant;

(e) The respondent’s prior knowledge of the sexualised behaviour of T towards other employees.

The President delivered the leading judgment with Gotterson JA agreeing. The appeal was disposed of in favour of the respondent and dismissed. McMurdo JA dissented.

In dismissing the appeal and affirming the trial decision, the President held:

[138] However, parts of the appellant’s pleaded case raises allegations which are alluringly close to a plea of volens.

[139] Thus, in paragraph 14(f) and (h) of its Further Amended Defence, the appellant pleaded:

“(f) The [appellant] could not have permitted its employees not to have any form of contact with the subject client; the [respondent] at all relevant times knew, and agreed to work in circumstances where, many clients of the [appellant] had complex issues with drugs, alcohol and mental health, and were often disadvantaged and homeless with young families. As the [respondent] knew, the subject client here had issues with drugs and alcohol and her mental health which manifested itself as overtly inappropriate sexual verbalisation but she had never been physically sexual towards any person;

(h) Further the [appellant] says that the [respondent] knew these matters and agreed to have contact with the subject client in the course of the [respondent’s] employment with the [appellant] and in those circumstances the [appellant] was entitled to assume that the [respondent] was capable of doing so and considered herself capable of doing so.”[13]

[140] However, I do not read any part of the Court’s reasons in Koehler as invoking a return to the common law position in England before 1880. The plurality said expressly that they had not decided the case upon the footing that the plaintiff’s express agreement to perform the duties which were the cause of her injuries was conclusive against her claim.[14] The decision was based, ultimately, upon the point that, by the plaintiff’s express agreement to do the actual work which caused her injury, she made it impossible to conclude that the employer should have foreseen that the doing of that work might result in her injury.

[141] The reasons of the plurality emphasise that aspect of the case:

“Two caveats should be entered. First, hitherto we have referred only to the employer’s performance of duties originally stipulated in a contract of employment. It may be that different considerations could be said to intrude when an employer is entitled to vary the duties to be performed by an employee and does so. The exercise of powers under a contract of employment may more readily be understood as subject to a qualification on their exercise than would the insistence upon performance of the work for which the parties stipulated when making the contract of employment.

Secondly, we are not to be understood as foreclosing questions about construction of the contract of employment. Identifying the duties to be performed under a contract of employment and, in particular, identifying whether performance of those duties is subject to some implied qualification or limitation, necessarily requires that full exploration of the contractual position … against the relevant statutory framework in which the contract was made.”[15]

[142] In my opinion it is not possible to read Koehler as standing for the proposition that the appellant would not be in breach of a duty of care by allowing or permitting the respondent to work with T because, as the appellant pleads, “the [respondent] agreed to do so”[16] or because she “knew, and agreed to work in circumstances where, many clients of the [appellant] had complex issues with drugs, alcohol and mental health”.[17] Such a reading of Koehler would be inconsistent with the first two sentences of paragraph [40] of the reasons. It would be consistent, however, with the reasoning of Bowen LJ in Thomas v Quartermaine.[18]

[143] Rather, Koehler requires an examination to be made of the whole content of the contractual relationship between the appellant and the respondent. It requires a determination to be made of the scope of the duties undertaken and whether those duties involved an acceptance by her of any risk of the kind of injury which she suffered that could arise merely by performing those duties. It requires a determination to be made whether what caused the injury was no more than the performance by the employee of the duties under the contract and in the circumstances envisaged by the contract.

[144] The scope of the duties that the respondent undertook can be determined by reference to her contract and by reference to the description of the services provided by the appellant.

[145] The respondent’s “Key Responsibilities” contained in the position statement when the job was advertised do not state or suggest that the employee who would fulfil the role would be attending upon persons who were likely to commit a sexual assault against which she had to guard. The description of the “Planned, On-going Parent/Family Support” responsibility involves the provision of “planned support to pregnant and parenting young people” and the provision of “counselling, information, support and advocacy” to them. The “Selection Criteria” required that the applicant would show a “demonstrated understanding of the issues facing young homeless or at risk parents and young pregnant women” and a “demonstrated capacity to provide planned support to homeless and at risk young parents so that they may live independently, improve their well-being, engage community support, increase their participation in activities and achieve greater self-reliance”. A candidate required knowledge of the “Child Protection Legislation and the accompanying System”.

[146] While the appellant offered “drug and alcohol services”, this was no part of the respondent’s responsibilities. Nor did the appellant hold itself out as having expertise in treating mental disorders or drug and alcohol addiction or their associated behaviours.

[147] The implicit assumption contained in the description of the respondent’s position was that candidates to whom such services would be provided would be selected by the appellant because they were suitable to receive them. There is no hint in the appellant’s description of that job that such a client might present physical danger to the employee offering these services or that the relevant employee must be in a position to cope with such danger. Ms Edwards said in evidence that the appellant’s clients included some young people who were “complex” and who had suffered from sexual abuse and were frequently “traumatised”. It is obvious that some of them would be expected to have drug or alcohol addictions and mental health issues. But she did not suggest that the appellant’s employees were expected to be equipped to face physical danger, that they were selected on the basis that they could treat the conditions that gave rise to such danger or that they were expected to cope with exposure to physical danger.

[155] From 2007, when the respondent began her employment, until 2011, the respondent provided the services that she had undertaken by her contract to provide to the appellant’s clients without incident or exposure to risk of injury. There was no evidence that any of the appellant’s other clients had the severe and dangerous disabilities suffered by T. There was no evidence that the appellant routinely undertook work with clients who demonstrated similar disabilities. There was no evidence that the appellant had worked with such people and had succeeded in stabilising them. There was no evidence that the respondent had ever been asked to work with such people. The inference is the other way. Ms Turner and Ms Christie could not work with T and Ms Kaphle doubted whether the appellant should be working with her at all. In 2009 a team meeting considered whether to cease the provision of services to T because of her “drug use, mental health and self-harming behaviours”. The same issue was reconsidered in 2010.

[156] The respondent therefore worked unremarkably and safely in her role for four years. Despite her own previous history of mental illness, as Dr Chalk said, she was actually well suited for the employment for which she contracted.

[159] The question of the safety of social workers is no different from the question of the safety of any workers whose occupation exposes them to identifiable risks of injury and the duty of care of an employer of social workers in this respect is no different in principle from the duty of care of any employer. An employer of workers on a building site would not be able to plead as a defence, as the appellant pleaded in paragraphs 14(f) and (h) of the Defence, that if the work did present risks of injury to the respondent then, knowing of those risks, the respondent agreed to do the work anyway “in the course of the [respondent’s] employment” and, as alleged in paragraph 17(iii) of the Defence, that “the [respondent] did not suggest to the [appellant] that the [respondent] was not capable of” doing the work. What is implicit in these pleas, but never attempted to be proven, was that because the respondent, as a social worker, had assessed or should have assessed for herself any risk that T posed to her, the appellant employer was absolved from any duty to take reasonable care to protect her against those risks.

[160] A prominent feature of this case is that the respondent was injured in the course of the pursuit of a profession. A profession is much more than a mere occupation. As well as requiring the possession of a high level of special knowledge and skill in a recognised body of learning, a profession requires of its members an adherence to a code of ethics and a preparedness to apply the relevant knowledge and skill in the interests of clients and for the public good. For a long time the professions have not been limited, as they once were, to the traditional trinity of clergy, medicine and law. Within any properly comprehensive modern definition social work is a profession. One ramification of professing such skill and knowledge and of making it available is that occasions will arise when a professional feels impelled to sacrifice his or her self-interest in favour of a client’s interests. In some professions, such as social work, this may involve considering whether to accept a risk of personal injury. While a particular employee must apply professional judgment to such questions when they arise, it will often be the case that it is the supervisor of such an employee who will be in a superior position to assess risks and to weigh them against the role and the duty of the institution of which the employee is a part and to determine whether to permit an employee to be exposed to a particular risk even if she has volunteered. This is no different in principle, to my mind, to the position of any employer who deals with a dedicated and skilled workforce that is prepared, on occasions, to undertake unusual risks in order to get the job done. An employer has a duty of care, in my opinion, to consider whether an employee should be permitted to undertake risks in such cases despite the employee’s asserted willingness to do the work in the face of the risk and despite the employee’s professional judgment that the risk is worth running. An employer is, or ought to be, in a better position to identify and to assess risks in the workplace and to determine the propriety of exposing its employees to them.

[161] The issue of the risk of physical violence to which social workers might be exposed has not emerged for the first time only in this litigation. It has been the subject of professional literature that also includes studies about how these risks can be prevented.[19] However, none of this was examined or put in issue by the parties at the trial. The appellant’s attitude was simply to assert, without evidence, that the respondent was justifiably regarded by the appellant as capable of both judging the extent and of running the risk of physical assault from a client like T. However, it is not self-evident to me that social workers, unlike almost all other workers, implicitly accept the sole obligation of assessing, upon the information available to them, the risk of injury when undertaking work with a client of the employer so as to absolve the employer from the usual duty to ensure the safety of the workplace. Nor is it self-evident to me that social workers, because they possess appropriate learning, skill and experience to gauge such risks, do so.

[162] This was a case in which the employer knew the risks that T presented to its staff. This was also a case in which the employer had an appreciation of its own limitations in dealing with some of the problems presented by T and knowledge of the existence of other services that were better suited. The employer also knew that its employees had a vocation which would impel them to make personal sacrifices if they believed that by doing so they might serve another human being. That is what Ms Turner and Ms Christie had actually done. The results of their efforts were plain. The judgment of supervising staff in October 2010 that T was unsuitable to be retained as a client was right. The appellant should have ignored the respondent’s altruistic and natural offer to work with T and should have referred T to those with the expertise to deal with her acute problems. The respondent’s rhetorical question “if BYS won’t help her then who will?” was pregnant with the implicit answer “Nobody”. But as the appellant knew, or ought to have known, although neither the appellant nor the respondent could help T, other institutions or professionals might have been able to do so.

[163] It follows that, unlike the plaintiff in Koehler, the respondent’s agreement to do the contracted work and her offer to work with T were not inconsistent with either an appreciation on the part of the appellant that the performance of work with T exposed the respondent to a risk of injury or with the existence of a duty to prevent that risk from arising.

[164] The respondent’s agreement to perform her duties under her contract of employment was not conclusive against her claim. It could not be said, and it is not said by the appellant, that she undertook to provide services to persons who might assault her. Her role was to engage with the appellant’s clients in a limited role. It was to provide tuition on how to engage with children to parents who were unable effectively to do so. That work assumed that the persons selected for the provision of such services would be apt students for such tuition, or at least that they would not present foreseeable risks of injury to the worker selected to provide such services. The respondent’s role in providing advocacy services to such clients was of the same kind. No part of it involved accepting the risk of personal injury.

[165] The work that the respondent contractually undertook to do was not inherently dangerous and in fact she encountered no problems for the four years before she was injured. However, even if the work which she undertook was inherently dangerous, that did not operate to reduce or to extinguish the appellant’s duty of care. The presence of risk of injury in dangerous occupations does not work to throw the responsibility of avoiding such risks onto the shoulders of employees beyond the application of the law relating to contributory negligence and, in appropriate cases, the doctrine of volenti non fit injuria.

[166] The appellant’s case was, in large part, that the respondent’s expression of willingness to work with T and, indeed, her insistence that she should be permitted to do so despite her own knowledge of Ms Christie’s and Ms Turner’s experiences, should eliminate any responsibility in the appellant because the possible dangers of working with people who may be mentally ill or addicted should be obvious to professionals in this field and should have been obvious, and were obvious, to the respondent. However, in my view, the fact that the dangers to which social workers might be exposed may be both obvious and expected does not operate to reduce an employer’s duty to ensure an employee’s safety. On the contrary, while the standard of the employer’s duty of care remains the same, the occasion for action may become more evident by an employer’s appreciation of the ubiquitous nature of such risks and the potential for such risks to carry severe consequences for employees.

[167] As von Doussa J said in Perkovic v McDonnell Industries Pty Ltd:[20]

“Each case will turn on its facts. Generally speaking, the greater the degree of danger inherent in the work, the more likely will be the need for instruction and warning. Even the most skilled employees in their familiarity with the work, or because of the speed or the circumstances under which the work is performed, may be prone to take shortcuts, to disregard obvious precautions, or to be unmindful of dangers. The employer’s duty to exercise reasonable care for the safety of his employees will often require that skilled employees be reminded periodically about the risks of their work and the need to guard against them.”

[168] This may be most acute in occupations in which it is the duty of workers to go to the aid of others in situations of peril, thereby endangering themselves, when it is to be expected that the character of the men and women who pursue such vocations will cause them to volunteer to go into situations of grave danger to themselves when an objective, informed and appropriately qualified person in a position of authority would, and should, stop them. This is unremarkable. The duty of an employer in such a case is no different in substance from that of an employer who must prevent a manual worker who has expressed a preparedness to accept a risk of injury posed by dangerously defective machinery because the worker has some personal and well-meaning motive to ignore the hazard. In Smith v Broken Hill Pty Co Ltd,[21] Taylor J said:

“The general principles which define the responsibility of an employer in such cases are well settled and it is unnecessary to re-state them. But it is of some importance to notice that they operate to impose liability upon an employer whether the risk is consequent, solely, upon the physical operations which the performance of any particular task requires or whether, in the ultimate analysis, it is possible to see that the risk really results from the fact that the performance of those operations have been committed to a fallible human agent. This does not mean, of course, that where an injury has been caused to an employee by his own negligence he may seek to hold his employer liable but, rather, that the duty of the latter is not fully discharged unless, in the provision of safeguards, he has taken into account, not only that particular tasks necessarily involve particular risks, but also that inadvertence and inattention, short of positive negligence, are common concomitants of everyday work.”

[169] As I have said, the appellant’s managerial staff knew of the danger that T posed to the appellant’s employees. The appellant had already relieved two employees from working with T because of the danger involved. The appellant also knew, or ought to have appreciated, that its employees were not in a position to bring about the “Outcomes” sought in the Department’s Plan. Two employees had struggled for one and a half years to achieve those aims and had had to retire hurt. Now a third employee was insisting that she should have a go. As Lord Denning said in Rands v McNeil:[22]

“It is trite knowledge that the greater the danger the greater the precautions that should be taken.”

[171] The issue then resolves to the question whether, as s 305B required the respondent to prove, the risk of psychiatric harm to the respondent was a reasonably foreseeable consequence of permitting her to continue to work with T. The risk of assault by T, including sexual assault was, in my opinion, reasonably foreseeable. This was the very reason why Ms Turner and Ms Christie ceased to be willing to work with her. That such an assault might be a sexual assault was equally foreseeable given T’s particular tendency to sexualise her relationship with her support worker. It was the pattern that began with Ms Turner and continued with Ms Christie. It was reasonably foreseeable, in my view, that she would repeat her pattern of sexual fixation with any social worker assigned to work with her in my capacity.

[173] The appellant argued that it could not reasonably have been foreseen that T would commit a sexual assault on the respondent at a formal meeting attended by a number of people. I am unable to accept that submission. Sexual assaults frequently occur in the most unlikely, and public, of situations. Those who are prone to commit them often do so on occasions that a normal person would regard as fraught with the risk of embarrassing discovery. But a normal person does not commit sexual assaults. Having regard in particular to T’s frequent episodes of irrational sexual behaviour, including her serial sexual fixations, in my opinion it was foreseeable that an assault of the kind that actually happened could have happened and that it could have happened anywhere.

[174] It is therefore necessary to address s 305B(1)(b). The respondent had to prove that the risk of injury was not insignificant. Although the appellant pleaded that it was, it is difficult to see how that allegation could be sustained. Each of Ms Turner and Ms Christie, both knowledgeable and experienced professionals, were no longer willing to take the risk that T posed to themselves. Ms Kaphle agreed with their assessment of the significance of the risk in supporting their retirement from their respective roles. The relevant risk of injury was a risk that T would do something by way of a sexual assault, a proclivity that she had demonstrated by words and actions, if not by the commission of the actual assault described in evidence by the respondent. That such an assault could result in psychiatric injury was also foreseeable. Indeed, I did not understand the appellant to challenge that aspect of the matter on appeal. Nor was the respondent’s particular vulnerability raised as an answer. In my view the risk of injury was not insignificant.

[175] That being the position, it remains to consider what the appellant should have done. The learned trial judge concluded that the appellant should have ceased exposing its employees to the foreseeable risk of physical and psychiatric harm that T presented and that it should, therefore, have ceased offering its services to her. This was no more than what Ms Kaphle had thought and said at the meeting of 14 October 2010 and what had been discussed earlier in September 2009. The appellant’s breach was to continue to retain T as a client thereby exposing the respondent to the risk of sexual assault of the kind that was committed. It does not matter that the assault was committed at a meeting rather than in the privacy of T’s home for the reasons that I have already explained.

[176] The step of dispensing with T as a client, as a necessary precaution to avoid the risk of harm to the respondent, was a reasonable one to take. T would not have been abandoned without succour of any kind. She would only have been left without the kind of services that were being provided by the appellant, but that were of no use to her anyway as two years of experience had already shown. There were others, psychiatrists, dedicated rehabilitation centres and the like, who could satisfy her real needs. No evidence was led to suggest otherwise. The appellant’s failure to send T to another service was a breach of its duty of care to the respondent and caused her injuries.

David Cormack – Brisbane Barrister & Mediator

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