WCRA: duty to workers’ paramount where there is a conflict over duties

Beven v Brisbane Youth Service Inc [2016] QSC 163

The plaintiff suffered a psychiatric injury as a result of a sexual assault and explicit comments by a client of the defendant, whom the plaintiff was employed as a family support worker to work with. The history detailed in the lead up to the offending conduct of the client was troubling and graphic. Her Honour Atkinson J found that as a result of the history that the employer was aware of such conduct [104].

In consequence when the offending conduct took place, her Honour found that the cause of the severe psychiatric injury was not the stress caused in the workplace as result of her contract to undertake such work, but rather the sexual assault during the course of her employment, which was the major significant contributing factor [163]. The risk was found to foreseeable and not insignificant and that a reasonable employer would have taken precautions to avoid the risk under s.305B of the Workers’ Compensation and Rehabilitation Act (WCRA) [162]. Those precautions would have included declining services to the client [163]. Her Honour found that while the work of the defendant was important and socially valuable it did not displace the employer’s duty to the plaintiff:

[163] What should the employer have done to avoid that risk? In this case, given the potentially serious consequences of that foreseeable risk eventuating, it should have declined to continue to offer further services to T. The work of BYS is important and socially valuable but that social value does not displace its duty of care to its employees. BYS was aware that it was risky to Ms Beven to see T at her house. What the employer, however, failed to take account of was that when its employee saw T at her house on a regular basis, as was shown by her behaviour first to Ms Turner and then to Ms Christie, this led her to develop and express an unhealthy and unacceptable level of intimacy and sexualised behaviour towards that employee. True it is that the sexual assault did not occur in T’s home, but the visits by Ms Beven to T’s home as part of her work for BYS created the relationship between T and Ms Beven which gave T the opportunity to take advantage of that relationship to engage in inappropriate sexualised behaviour towards Ms Beven, in this case a sexual assault.

[164] There is no policy reason why the employer should not be held liable or, to put it in the terms of s 305D(i)(b), it is appropriate in all of the circumstances for the scope of the liability of the employer, who was in breach of its duty, to extend to the injury caused by that breach.

[165] In summary, the respondent owed a duty to the plaintiff, it breached its duty, the breach of duty factually caused the plaintiff’s injury (WCRA s 305D(i)(a)). It is appropriate for the scope of the liability of the employer to extend to the injury so caused (WCRA s 305D(i)(b)).

The effects of the psychiatric injury were so significant that $1,508,639.35 in damages were awarded [176].

David Cormack – Brisbane Barrister & Mediator

NB: appeal dismissed: Brisbane Youth Service Inc v Beven [2017] QCA 211

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