Duty of Care

Beven v Brisbane Youth Service Inc [2017] QCA 211 Court of Appeal Sofronoff, Gotterson and McMurdo J.

22 September 2017

Background
Ms Beven was a family support worker for Brisbane Youth Services. The employer provides counselling and other support services to young people who have generally, mental illness, drug addiction, been affected by sexual abuse, and other problems, including legal and homelessness. One such client was ‘T’ who had a history of sexual advances towards workers, but no physical assaults, such that those workers had ceased providing services to her in her home. In fact, two other workers had previously refused to work with T at all. The Plaintiff agreed to work with T. At a meeting held in a public place which was attended by T, the Plaintiff, T’s mother and nephew, as well as departmental officers, T sexually assaulted the Plaintiff by touching her with her foot under the table. The Plaintiff suffered a severe psychiatric reaction to this incident. It was the evidence, that unbeknown to the employer, the Plaintiff had suffered a prejudicial childhood and been the subject of sexual abuse.

Liability
The Trial Judge found, and the Court of Appeal by majority agreed, that the employer had breached its duty of care. It was accepted evidence that T’s behaviour had not improved with the interventions of the employer. The employer, being aware of the risks posed by T, should have immediately discontinued providing services to her and referred her to other services. The employer’s failure to do so was a breach of its duty of care.

The employer argued that it was simply not foreseeable that T would behave in that manner in the circumstances of such a meeting, and that the risk of injury to the Plaintiff was insignificant. The Trial Judge disagreed with the employer’s propositions.

Judgement
In a 2-1 decision the Court of Appeal dismissed the employer’s appeal from the finding of the Trial Judge that the employer breached its duty of care to the Plaintiff. The Plaintiff was awarded $1.6 million as the evidence proved she was unlikely to return to work.

Discussion
This decision places a very strict duty on employers who provide services to high risk clients. Reasonable precautions may extend to declining the provision of services.