WCRA: NGO lack of funding contributes to assault claim failing

Stokes v House With No Steps [2016] QSC 79

Jackson J

The plaintiff was employed as a disability support worker at a residential care home operated by House With No Steps (HWNS). On 15 August 2010 she was attacked by a patient, sustaining bite injuries, limb soreness which left her heavily distressed. She brought a claim against HWNS alleging that the defendant was negligent in not taking precautions against a possible attack and therefore causing her loss.

The attack occurred after the plaintiff asked the patient to remove crockery from his mouth at which point the patient grabbed the plaintiff by the throat shaking and biting her. The plaintiff was able to manoeuvre the client to his bed where she released him. The patient ran outside while the plaintiff sought refuge in the office. The plaintiff alleged four instances where HWNS failed to take reasonable precautions against the risk of attack, namely:

  1. The failure to provide a second carer in the event of an emergency;
  2. The failure to provide a duress alarm;
  3. The failure to provide an access card to the office for quick entry; and
  4. Failure to replace crockery with plastic plates and bowls

HWNS contended that as it relied on government funding, it did not have the resources to provide additional mechanisms against an attack. No submissions or fact finding was sought with respect to the fourth allegation. Therefore, the issue for the court was whether HWNS breached its duty by failing to take precautions against an attack and whether a finding of such a breach caused the plaintiff’s loss.

Second carer

The first allegation was that HWNS breached its duty to the plaintiff by failing to provide a second carer. Relevantly, the plaintiff argued that the standard of care is to be made with reference to a reasonable person with sufficient resources. Rejecting this, Jackson J accepted that HWNS did not have the means to provide a second carer. However, His Honour found that the relevant question open on the pleadings was whether the patient should have been cared for in an environment where two carers were available. Stating that there was insufficient evidence to accept this, His Honour was unable to find that a reasonable person in the position of HWNS would have taken the precaution of employing a second carer.

In deciding whether the lack of the second carer caused the plaintiff’s loss, Jackson J held that but for HWNS’s failure to provide a second carer, the plaintiff would not have suffered loss because the second carer would have been able to promptly assist.

Duress alarm

Secondly, the plaintiff argued that HWNS failed to take precautions against the risk by failing to provide employees with a duress alarm. HWNS argued that the cost of providing an alarm to each employee would be too expensive in light of governmental funding. His Honour held that there was a breach because a single alarm could have been transferred to the new worker on shift.

However, in discussing causation, Jackson J found that there was an evidentiary gap as there was no evidence that either emergency response would have arrived in time nor that a shorter struggle with the client would have avoided loss by the plaintiff. His Honour referred to Strong v Woolworths Ltd, where the High Court discussed that it was permissible to find causation notwithstanding that the defendant’s negligence cannot be established as a necessary precondition to the loss. In applying those principles to the present case, Jackson J held that causation was not proved under the ‘but for’ test and that there was nothing to suggest that this was an exceptional case.

Swipe access card

Thirdly, the plaintiff asserted that had there been a swipe access card entry into the office as oppose to manual key opening, she would have been able to quickly escape the situation. His Honour found that by failing to provide a swipe card access to the office where it had been available at a previous facility, HWNS had failed to take precautions against the risk.

However, His Honour was unpersuaded that under the circumstances the plaintiff would’ve opted to run for the office if there was a swipe access card. Accordingly, no causation in fact was found.


Jackson J found that the plaintiff had not proved any breach of duty by HWNS that caused compensable loss. His Honour continued to assess damages notwithstanding judgment for the defendant.


Allegation Breach of Duty Causation in Fact
Second carer No Yes
Duress alarm Yes No
Swipe access card Yes No


David Cormack – Brisbane Barrister & Mediator


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