WCRA: managerial conduct post assault outside of the duty of care

Govier v Unitingcare Community [2017] QCA 12

Fraser JA with Gotterson JA and North J agreeing

The appellant was employed by the respondent as a disability worker in Ipswich and charged with the care of the respondent’s client. A co-worker of the appellant was also charged with the care of the same client. In 2009, the co-worker attacked the appellant at the client’s residence during the change of shift, resulting in physical and psychiatric injuries. The appellant escaped the attack and was later hospitalised.

The main issues on appeal:

  1. Whether the respondent breached the duty to provide a safe system of work by requiring co-workers to meet at the change of shift;
  2. Whether the sending of two letters (after the assault) by the respondent amounted to a breach of duty; and
  3. The loss suffered by the appellant, including the assault and the timing and content of the letters.

Meeting at the change of shifts

The appellant contended that the respondent knew that the co-worker had behaved erratically and aggressively toward the appellant and other employees. Further, the appellant alleged that continued contact with the co-worker would put the appellant at risk of physical and psychiatric injury and that the respondent ought to have revised their shifts to prevent crossing over. The basis of these claims rested on a letter from the appellant to the respondent asking to be kept apart from the co-worker during their work and four prior incidents relating to the co-worker. Fraser JA addressed these issues as follows:

[28] … The primary judge was not satisfied that Mr Blackett necessarily believed that MD had a mental health problem or illness in circumstances in which Mr Blackett must have appreciated that this statement would have appeased the appellant and where he must have known that he did not have the skill or evidence to justify such a diagnosis.  It does not follow from Mr Blackett’s assertion that MD had a mental health problem or illness that the primary judge erred in failing to find that as at 14 October 2009 the respondent appreciated or reasonably should have appreciated that there was a risk that MD would assault the appellant or that the appellant might suffer a psychiatric injury.

As to the prior incidents, Fraser JA stated:

[37] … the primary judge found that those incidents “were based upon events which had occurred” and the primary judge was not satisfied that any of the incidents caused the appellant to infer a risk of violence or a need to alert Mr Blackett.  There was no incongruity between the finding that the incidents were based upon events which had occurred and the primary judge’s non-satisfaction that any of them caused the appellant to infer a risk of violence to her or a need to alert Mr Blackett.

[49] … It suggested that the appellant had said something to Mr Blackett before the assault concerning (actual or potential) physical violence by MD against the appellant.  That evidence could not gain support from the statement which Dr Kar attributed to the appellant, which suggested only that Ms Govier had told the appellant that Mr Blackett had been extremely apologetic and admitted that he had failed to move the appellant away from MD.  Those statements contain no indication that, before the assault, Mr Blackett understood that there was a risk of the occurrence of the attack which occurred.

Timing and content of two letters

The respondent had sent two letters to the appellant, the first on the day of the incident requiring the appellant to attend a meeting the following day, and a second letter two weeks later criticising the appellant’s conduct. The appellant claimed that the respondent ought to have known that the appellant remained in a fragile physical and psychiatric state after the incident and the timing of the letters involved further distress. Of these letters, Fraser JA stated:

[67] In Paige, Spigelman CJ … held that a proposed duty owed by an employer to supply a safe system of work to an employee in relation to the incidents of the contract of employment, such as in the disciplinary procedures under consideration in Paige, was a novel category of duty which involved an extension beyond the duty established by case law to supply a safe system of work in relation to the conduct of tasks for which an employee was engaged.

Fraser JA relied on Spigelman CJ in Paige where His Honour stated that “matters concerning the creation and termination of a contract of employment can, in my opinion, be left to the law of contract, subject to the extensive statutory modification.” Fraser JA went on to state:

[68] … A finding, such as the primary judge made in this case, that the injury suffered by an employee was a foreseeable consequence of a lack of reasonable care by an employer, is not sufficient to justify the creation of a new category of duty of care.

Apportionment of loss

It was unnecessary for Fraser JA to consider whether the letters contributed 15% to the appellant’s loss, however His Honour expressed his agreement with the primary judge in this regard.

The appeal was dismissed with costs.

David Cormack – Brisbane Barrister & Mediator

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