Gilmour v Blue Care[2024] QDC 189

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was a 22-year-old idealistic young woman working as a personal carer for the defendant, Blue Care, in April 2019. On 24 April 2019, she attended Lilliput Caring, a hostel that predominantly houses men with mental health and/or addiction problems, to service one of Blue Care's clients. Whilst performing that work, another resident who was not a client of Blue Care asked the plaintiff to assist him in making his bed. Whilst doing so, the resident, Mr L, sexually assaulted the plaintiff.
2. [2]
   The plaintiff was significantly affected by this assault. She has been diagnosed with chronic post-traumatic stress disorder (PTSD).  She was unable to return to work as a personal care worker in the aftermath of the assault and will never be able to return to work as a personal care worker.

3. [3]
   The plaintiff claims damages for negligence for breach of the defendant’s admitted duty of care as her employer.  The plaintiff alleges that Blue Care:

• failed to take adequate precautions for the safety of the plaintiff;
• exposed the plaintiff to a risk of damage or injury which could have been avoided by reasonable care on the part of the defendant;
• failed to provide a safe system of work;
• failed to provide safe plant and equipment;
• failed to conduct any or any appropriate and effective risk assessment in relation to the plaintiff's work activities;
• failed to give the plaintiff any adequate or timely instructions as to the safe performance of her duties;
• failed to give the plaintiff any warning as to the dangers associated with undertaking her work duties, in particular, the risk of assault by residents of the hostel;
• failed to train the plaintiff as to measures to be employed at the hostel to minimise the risk of assault in the course of her employment;
• failed to put in place security measures to minimise the risk of assault by residents;
• failed to provide a personal duress alarm;
• failed to provide a system of work requiring employees to attend and work at the hostel in pairs;
• required the plaintiff to work at the hostel when no or inadequate security measures were in place.

4. [4]
   For the reasons that follow, I am satisfied on the balance of probabilities that Blue Care did breach the duty of care owed to the plaintiff by failing to conduct any appropriate and effective risk assessment of the hostel, by failing to require the employees to attend and work in pairs, and by failing to warn or instruct the plaintiff as to the dangers associated with undertaking her work duties at the hostel. 

The plaintiff

5. [5]
   The plaintiff was born on 3 December 1997. She commenced her certificate in aged care when in year ten at high school. She completed that certificate and began working as an assistant-in-nursing in the aged care sector upon leaving school. Her roles over the following few years involved working with elderly people and people with disabilities. She had hopes of one day becoming a registered nurse. 

6. [6]
   The plaintiff commenced working for Blue Care in 2015.  She worked for other similar organisations until 2018 when she returned to work for Blue Care in the Ipswich region as a personal care worker.  Her role as a personal care worker involved providing lifestyle services to clients of Blue Care living in the community.  Those clients were older people or people living disabilities.  She was required to attend the Lilliput Caring Hostel in Ipswich to service clients who received funding through the National Disability Insurance Scheme (NDIS).

7. [7]
   The plaintiff described her role at Blue Care in this way, "I loved my job. I loved going to work every day. And if I was still in it, God only knows where I'd be at the moment."

Lilliput Caring

8. [8]
   Lilliput Caring is a supported accommodation facility that provides housing predominately to those with mental health and addiction problems. There are 57 residents, the vast majority of whom are men.   There are around eight women who reside at the hostel.  The women are housed separately to the men.  The residents are primarily referred to the hostel by the Ipswich Mental Health Service or the hospital.  Some residents are subject to a Treatment Authority under the Mental Health Act 2016.  A Treatment Authority can only be made for a person who has a mental illness and does not have the capacity to consent to be treated for the illness and because of the mental illness the absence of involuntary treatment is likely to result in imminent serious harm to the person or others or the person suffering serious mental and physical deterioration.^[1]

The events of 24 April 2019

9. [9]
   On 24 April 2019, the plaintiff attended Lilliput Caring to service a Blue Care client, Mr C. Mr C had a diagnosis of schizophrenia and suffered an intellectual disability. The plaintiff had been providing services to Mr C since January 2019. Her tasks generally included encouraging Mr C to shower, cleaning up his room, attending to his washing, and taking him to see his sister on the Gold Coast.

10. [10]
    The plaintiff arrived at Lilliput Caring at around 9 am on 24 April 2019.  Mr C was not present in his room when the plaintiff arrived. That was not uncommon as Mr C did not like taking showers and would often absent himself from his room when the plaintiff was due to arrive.  The plaintiff was to drive Mr C to the Gold Coast to see his sister on this day. The plaintiff spent her time tidying Mr C's room and taking his washing to the laundry room.  At around 11 am whilst the plaintiff was still cleaning Mr C’s room, she said that she was approached by another resident, Mr L. He asked her to help him make his bed. The plaintiff said she did not think anything of that, so she helped him.

11. [11]
    The plaintiff did not know Mr L. He was not a client of Blue Care.  The plaintiff entered Mr L’s room and started making his bed.  Mr L shut the door. He came up behind the plaintiff, grabbed her on the hips, and tried to pull her pants down. He pressed his erect penis against her. She hit him, he let her go, and she was able to exit the room. She said that she ran from the room. She has no recollection of the journey she made to the staff room. However, she made a complaint to staff and called her supervisor.

12. [12]
    Closed circuit television footage is available of the hallway which provides access to the resident’s rooms. That footage reveals that Mr L looks into the hallway from the doorway to his room and sees the plaintiff walking in the hallway carrying a cleaning product.  He motions to her to approach him whilst he remains standing in the doorway to his room.  They speak briefly and the plaintiff enters Mr L’s room.  Around 45 seconds later the door to the room is shut.  The plaintiff exits the room around two minutes later.   She appears to return to Mr C’s room before making her way to the main office where she is clearly distressed. 

13. [13]
    The defendant noted that there are some inconsistencies in the plaintiff's account of the event that she has given over the years.  The defendant's counsel properly acknowledged though, that inconsistencies are to be expected, given the passage of time since this event took place.  It is not the inconsistencies themselves that the defendant contends are important but rather the plaintiff’s response in cross-examination when one of those inconsistencies was drawn to her attention.  In the Notice of Claim and in other accounts, the plaintiff said that she ran out of Mr L’s room. In response to the suggestion that was inaccurate, she responded that she could not remember whether she had run or walked. 

14. [14]
    I do not consider that anything turns on the inconsistency itself or the plaintiff’s response to the suggestion that the Notice of Claim was incorrect in stating that she ran from the room.  The plaintiff has not seen the CCTV footage as she is too distressed to view it.  I did not take from her response that she was refusing to acknowledge that she was wrong in saying that she ran from the room but rather that she simply could not remember.  The plaintiff's evidence was that from the time she exited the room until she found herself in the staff room, she has no memory of what she did.  She said that she recalled speaking to a cleaner and going to the staff room but does not remember much else of her journey from Mr L’s room to the staff room.  She does not recall returning to Mr C’s room which the footage clearly depicts. 

15. [15]
    Trauma can impact memory. So can conditions such as post-traumatic stress disorder.^[2] Such is the accepted research on memory formation that juries in sexual offence trials are regularly directed that experience shows:

1. People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and,

2. Trauma may affect people differently, including affecting how they recall events; and,

3. It is common for there to be differences in accounts of a sexual offence; and,

4. Both truthful and untruthful accounts of a sexual offence may contain differences.^[3]

16. [16]
    Overall, I considered that the plaintiff was a careful and honest witness.  I accept her evidence as truthful and reliable.  She was subjected to a terrible assault, which continues to impact her life. 

The injury

17. [17]
    Following the sexual assault, the plaintiff saw her general practitioner and a psychologist. She was prescribed medication to treat her symptoms which included nightmares, night sweats and flashbacks.  The plaintiff commenced abusing cannabis and other prescription medication to self-medicate her symptoms. She found herself triggered often.  She presented at trial as still significantly distressed when recounting the sexual assault. 

18. [18]
    It is uncontroversial that the plaintiff was found to be suffering chronic post-traumatic stress disorder as a result of this sexual assault. The plaintiff is no longer able to work as a personal care worker. She attempted to return to Blue Care in an administration role for a period. She ultimately resigned to move away from the Ipswich area and the constant reminders of her assault.  She obtained some work in an accounting business but found the environment difficult given the crude language used.  She worked for a time in a restaurant with a friend.  That employer was supportive and understanding of her situation.  When her friend resigned from that job, so did the plaintiff. 
19. [19]
    The plaintiff fell pregnant to her husband which motivated her to stop abusing all drugs.  After giving birth to her son, she did return to part-time work in her husband’s business.  The plaintiff’s supportive husband, her supportive parents, sister, and son have all served as protective factors for her. The plaintiff remains motivated to work. 

The duty of care of Blue Care

20. [20]
    It is uncontroversial that Blue Care owed the plaintiff a non-delegable duty to take reasonable care to provide a safe system of work and ensure reasonable care was taken to protect her from known or foreseeable risks. The content of the duty owed was expressed in Czatyrko v Edith Cowan University^[4] as follows:

“…An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work”^[5] (footnotes omitted).

21. [21]
    The duty of care can extend to taking reasonable care to guard an employee against the random and unpredictable criminal behaviour of others.^[6]  That is because the employer can prevent the employee from going in harm's way. In Modbury Triangle Shopping Centre Pty Ltd v Anzil^[7] Hayne J said at [110]:

"The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken."^[8]

22. [22]
    Sections 305B-305D of the Workers’ Compensation Rehabilitation Act 2003 (WCRA) govern the principles applicable to the standard of care to be observed by an employer and to the issue of causation.

23. [23]
    An employer does not breach a duty to take precautions against a risk of injury to a worker unless:

1. (a)
   the risk was foreseeable (that is, a risk the employer knew or ought reasonably have known);
2. (b)
   the risk was not insignificant;
3. (c)
   in the circumstances, a reasonable person in the employer's position would have taken the precautions.^[9]

24. [24]
    The plaintiff's case is that Blue Care breached its duty of care by:

1. failing to take any or any adequate precautions for the safety of the Plaintiff;

2. exposing the Plaintiff to a risk of damage or injury which could have been avoided by reasonable care on behalf of the Defendant;

3. failing to provide a safe system of work;

4. failing to provide safe plant and equipment;

5. failing to conduct any, or any appropriate and effective risk assessment in relation to the Plaintiff’s work activities;

6. failing to give the Plaintiff any, or any proper, adequate or timely instructions as to the safe performance of her duties when a reasonably prudent employer would have done so;

7. failing to give the Plaintiff any or any proper, adequate or timely warning as to the dangers associated with undertaking her work duties, in particular the risk of assault by residents of the hostel;

8. failing to train the Plaintiff as to measures to be employed at the hostel, or generally to a minimise the risk of assault in the course of her employment;

9. failing to put in place to apply at the hostel, security measures in order to minimise the risk of assault by residents of the hostel;

10. failing to provide the Plaintiff with a personal duress alarm of the type referred to in para 6 hereof, or otherwise;

11. failing to provide a system of work requiring its employees to attend and work in the hostel in pairs;

12. failing to comply with its statutory duties pursuant to the provisions of the Work Health and Safety Act 2011;

13. requiring the Plaintiff to work at the hostel when there were no, or inadequate security measures in place.^[10]

What was the risk of harm?

25. [25]
    The plaintiff pleads that there was a risk that persons visiting the hostel to provide care would suffer assault committed by residents of the hostel. It is that risk against which it is alleged that the defendant was obliged to take precautions. The defendant contends that the risk should be framed as a risk of an employee suffering injury from a third-party sexual assault by Mr L, whilst carrying out their work duties at Lilliput Caring.

26. [26]
    The risk to be assessed by a reasonable employer is not confined to the precise set of circumstances that eventuated. What must be foreseeable is the nature of the circumstances in which the harm was incurred, that is the type or nature of the event or harm that eventuated.^[11]

27. [27]
    In my view, the contention adopted by the defendant is an unduly narrow formulation of the risk of harm because it focuses too narrowly on the precise way in which the harm occurred.  The relevant risk is better formulated to be reflective of the type of harm that eventuated, as a risk that persons visiting the hostel to provide care would suffer a sexual assault committed by a resident of the hostel.

Was the risk of harm foreseeable to the defendant? 

28. [28]
    The defendant is not Lilliput Caring, nor did it have any control over Lilliput Caring or its staff or residents. Blue Care was unaware of who resided at Lilliput Caring other than its own clients.  Blue Care did not know why any other non-client resident was residing at Lilliput Caring. 

29. [29]
    As indicated Lilliput Caring provides supported accommodation for people with mental health difficulties and addiction problems.  There are 57 residents, most of whom are men. The men's accommodation is across two stories. There are single-occupancy rooms as well as rooms for up to four people.   Some residents are subject to Treatment Authorities.  Some residents require anti-psychotic medication to be administered by depot injection. 

30. [30]
    These are features of Lilliput Caring which in my view ought to have been known by Blue Care.  Whilst I accept that Blue Care could not reasonably have been expected to know the precise diagnoses or each of the residents or who was subject to a Treatment Authority, nonetheless, as Lilliput Caring provided accommodation for people with mental health difficulties and addiction problems, Blue Care ought to have known of the existence of those general features and the potential problems that a resident may present with. 

31. [31]
    Blue Care did undertake some assessments themselves of residents of Lilliput Caring, but  those assessments related only to their own clients.  Blue Care adopted the same processes in relation to clients living in the hostel as they did for clients living in the general community. 

32. [32]
    Blue Care was aware, as a result of their assessment of Mr C, that he was diagnosed with schizophrenia.  It was also known to Blue Care that Mr C could become agitated easily. 

33. [33]
    Blue Care was aware that personal care workers who were required to shower clients were required to use a communal bathroom where other residents could attend.  Blue Care was also aware that personal care workers were required to do the laundry of some of their clients.  That required personal care workers to move throughout the hostel into and through other communal areas including the laundry.   

34. [34]
    The plaintiff’s supervisors were not familiar with Lilliput Caring at all.  Ms O'Brien was the plaintiff's direct supervisor. She said that Blue Care had several clients who lived at Lilliput Caring. A lot of those clients received funding through the NDIS. Ms O'Brien said that a team leader would assess the client and conduct an environmental assessment looking at the external surroundings. They had an arrangement with the management of Lilliput Caring that if a client was not in his/her room when the Blue Care worker arrived, the worker would go to the reception area to advise of the client's absence. Lilliput Caring staff would then try to locate the client on the grounds.  An external assessment was also undertaken by Blue Care which involved assessing the areas where the workers had to shower clients. As the showers at Lilliput Caring were in a shower block, that would include checking that shower chairs or other equipment that might be necessary for a particular client was available.  There was, otherwise, no assessment undertaken of Lilliput Caring generally or of other residents. 

35. [35]
    Ms O'Brien was unaware of how many residents Lilliput Caring accommodated but thought it was at least 30 over two levels. Ms O'Brien had not visited Lilliput Caring prior to the sexual assault on the plaintiff.  She visited on one occasion after the sexual assault.  Ms O'Brien was largely unaware of the layout of the hostel or the room configurations.  It was unknown to Ms O'Brien that assisting a client to shower meant the worker would have to use a communal bathroom where other residents could enter.    Other than the team leader attending to assess a Blue Care client initially, she was unaware whether anyone at a management level had visited Lilliput Caring before April 2019. Ms O'Brien was unaware of how residents came to live at Lilliput Caring. She was unaware that many were referred from the Mental Health Service. Ms O'Brien was also unaware that residents might have chronic addictions.

36. [36]
    Ms O'Brien's supervisor, Ms Carr, also provided evidence. Her role was to oversee the community services operations, that is, providing lifestyle and community services to clients in the community. Ms Carr's knowledge of Lilliput Caring was similarly limited to Ms O'Brien's. She was aware that some of the residents were funded through the NDIS, but otherwise no assessment was undertaken of Lilliput Caring.  Like Ms O'Brien, Ms Carr was unaware that the residents were referred to Lilliput Caring from the Mental Health Service.  She had never visited the hostel herself. There were no policies or procedures in place which were unique to Lilliput Caring.  Ms Carr was not even aware that Mr L remained living at Lilliput Caring after the assault upon the plaintiff, when Blue Care continued to send workers to the hostel to service clients.   

37. [37]
    Ms Carr’s evidence was that there was no concern about sending workers to Lilliput Caring because there had been no reported incidents at the hostel.  The defendant relies particularly on the absence of any earlier complaints about any of the residents to argue that it was not reasonable in those circumstances for Blue Care to have foreseen a risk of a sexual assault from a resident. 

38. [38]
    The nature of the society in which we live denies that an employer who sends a young woman alone to a hostel predominantly housing men with mental health and addiction problems cannot foresee a risk of a sexual assault. In my view it is a genuine risk in today’s society.  That Blue Care was not aware of any other assaults does not mean that there were no other sexual assaults or that there was no real risk of a sexual assault.  It is now readily accepted that there may be good reasons why a person who is subjected to a sexual assault will hesitate in making a complaint or even refrain from making a complaint about a sexual offence.  

39. [39]
    Blue Care serviced its clients at Lilliput Caring like it serviced clients living in the general community without any regard for the circumstances of the hostel itself.  There was no organisational risk assessment conducted of Lilliput Caring.

40. [40]
    Given the proximity of residents to each other at the hostel, the requirement of staff to enter and utilise communal areas, and the sometimes unpredictable symptoms that persons living with serious mental illnesses might display, the risk of a sexual assault to a woman was in my view reasonably foreseeable and ought to have been foreseeable to the defendant.  I further consider that such a risk was not insignificant. A person who has a serious mental illness might be, at times, deprived of their capacity to understand what they are doing or to control their actions. A person who has a substance use disorder might be disinhibited when intoxicated by a substance. These features heighten the risk of a sexual assault to a woman working alone in a hostel and ought to have been known to Blue Care. 

Did Blue Care breach its duty of care? 

Risk assessment

41. [41]
    Blue Care undertook an assessment of their clients. That was performed by a team leader who prepared a care plan for the carers to follow. For example, Mr C's care plan included his diagnosis, the risks he might pose, and how to engage with him if he exhibited some aggressive behaviours. 

42. [42]
    There was no risk assessment undertaken of other residents, nor could there have been, as they were not clients of Blue Care. However, an assessment of the facility as a whole would have involved an appreciation that many residents experienced mental health problems and chronic addiction problems; that residents may have been the subject of a Treatment Authority; that most of the residents were men; and that the carers were required to move throughout the hostel into communal areas in order to perform the services they were employed to undertake. The assessment of environmental factors conducted by Blue Care relevant to the performance of a worker’s duties was limited to lighting, ensuring clear pathways, and hazards. The evaluation did not involve any consideration of the type of issues that a resident may present with or the type of conduct that might manifest as a result.  An organisational risk assessment of Lilliput Caring would have alerted Blue Care to the possibility of unpredictable and irrational behaviour by a resident/s. 

43. [43]
    Further, Blue Care was not itself aware whether any risk assessment was undertaken of the residents by Lilliput Caring. 

44. [44]
    Ms Lillian Aaron, the Director of Lilliput Caring gave evidence that before taking in a resident, they ask for a background on the person. The background includes their medication requirements and whether they have been in prison. She said that there is a criterion for admission. Lilliput Caring does not take those with a history of sexual abuse or violence. She said she and her manager, Ms Paula Murphy, performed those assessments on prospective residents. They also conduct a trial over one month to see if the person is suitable to reside at Lilliput Caring. 

45. [45]
    Ms Murphy’s evidence differed as to any risk assessment undertaken by Lilliput Caring.   She said Lilliput Caring did not take residents who had been in trouble with the law in terms of "bashing and molestation". Ms Murphy said that they told the referring agencies of that criteria.  The only assessment of Mr L which Ms Murphy described involved obtaining a photograph of him to identify him when dispensing his medication and obtaining other personal identifying details.

46. [46]
    Ms Aaron was served with a Notice for Non-Party Disclosure requiring documentation about the assessment undertaken of Mr L's suitability to be a resident. Ms Aaron acknowledged in her response to that notice that no documented assessment was conducted of Mr L. Rather, reliance was placed upon the Ipswich Mental Health Service's evaluation of Mr L. She further responded that Lilliput Caring does not have a documented procedure for the identification of issues with prospective residents, which might create a risk to the person at the hostel. Ms Aaron's evidence contradicted what she wrote in response to the Notice for Non-Party Disclosure. In evidence, she said that she assessed Mr L, that he was "quite good", and that she wrote some notes about him and gave them to the doctor. She said that she had a file for Mr L but did not go looking for it when she received the Notice because there was nothing in the notes that would be about sexual abuse.

47. [47]
    I do not accept Ms Aaron’s evidence as to the assessment/s undertaken.  

48. [48]
    Even after the sexual assault on the plaintiff by Mr L, Ms Murphy did not consider that what occurred to the plaintiff was serious enough to warrant warning any other workers about Mr L despite his remaining as a resident of the hostel after the sexual assault occurred.

49. [49]
    In my view, Blue Care breached the duty of care it owed to the plaintiff by failing to perform its own risk assessment of the Lilliput Caring hostel when it required the plaintiff to work at the hostel.

Failing to take adequate precautions or provide training or warnings as to the dangers present

50. [50]
    The defendant recognised that its employees might be exposed to a risk to their safety when working with its clients.  Blue Care provides extensive and ongoing training to its employees which included conflict awareness and lone worker training. 

51. [51]
    The plaintiff first worked for Blue Care in 2015 and, after working with other organisations providing services for the aged care sector, returned to Blue Care in 2018. Amongst the training she received is the following:

• orientation training in 2015 and again in 2018;
• web-based lone worker training conducted on 18 April 2018 across 30 minutes;
• web-based conflict awareness training conducted on 18 April 2018 over 1 hour 30 minutes.

52. [52]
    Conflict awareness and lone worker training are focused on having workers undertake dynamic risk assessments. The training acknowledges that the employer must assess significant risks, including aggression and violence, and implement control measures to reduce or eliminate those risks.

53. [53]
    The training provides that workers should undertake a dynamic risk assessment.  Such an assessment is focused on assessing situations as they unfold to avoid and defuse conflict through positive communication.  The potential safety risks identified in the training include abuse, threats, and assault when meeting people, accident risks, and vulnerability to crime when travelling, e.g., theft, harassment and assault, and damage to vehicles.

54. [54]
    The training provides many examples of things a person could do in undertaking a dynamic risk assessment, including having an exit strategy and emergency procedures. However, the training seems to me to be focused on the risk of physical violence or conflict arising when working with a client in the community.   It is not focused on the risk of sexual violence being perpetrated against, particularly a woman working alone in a male-dominated facility. The training is also not focused on the unpredictable and irrational behaviour that might manifest in a person with a mental illness or chronic addiction.

55. [55]
    Even the definition of workplace violence does not lend itself particularly well to a sexual assault. It states workplace violence "happens when you are abused, threatened or assaulted in circumstances related to your work". Assaulted is said to mean a physical act or immediate threat of assault. Examples include pushing, grabbing, scratching, striking, spitting and throwing objects.

56. [56]
    The training provides two types of risk assessments relevant to situations involving potential violence. The first is a planned risk assessment, which is pre-planned and can relate to the role performed, location, specific individuals/service users, activities, and events. This appears to be a risk assessment undertaken by the employer. In the context of this case, it is the assessment done by the team leader of the particular client. Blue Care did not itself see this as contemplating performing a risk assessment of a facility.

57. [57]
    The dynamic risk assessment is said to involve the continuous assessment of threat and risk that is personally undertaken as a live situation unfolds. The training identifies several everyday tasks and situations considered in the employer's planned risk assessments, including working with people with communication, emotional, and behavioural difficulties.

58. [58]
    The training adopts the anacronyms of SAFER and POPS.  Those expressions stand for:

Step back

Assess risk

Person

Objects

Place

Situation

Find help

Evaluate Options

Respond

59. [59]
    As indicated the dynamic risk assessment, including the SAFER and POPS model, is focused on preventing physical violence and dealing with conflict.  Sexual violence is, by its nature, unpredictable. I do not consider that the training focuses attention on the risk of sexual assault or is useful in preventing a sexual assault. From the point of the plaintiff, if she were focused on the risk of sexual violence, she would not have entered Mr L’s room. It is clear that she was not. Finding help, evaluating options, and responding are not options that would have guarded against the risk of a sexual assault. 
60. [60]
    I do not consider that the training turned the plaintiff’s mind to the risk of a sexual assault in a place such as Lilliput Caring. None of the training was specialised concerning persons who live with significant mental illness or chronic addition problems.  Whilst training in understanding dementia is provided no such similar training was provided with respect to schizophrenia or other serious mental illnesses. 

61. [61]
    Being a personal care worker involves by the very nature of the role a desire to help other disadvantaged persons.  The training did not guard against the risk of a sexual assault committed in circumstances where a personal care worker extended some small assistance to another resident even though she was not paid to perform that duty.    

62. [62]
    I am satisfied on the balance that Blue Care failed to provide training or warnings as to the dangers present at Lilliput Caring.

Failing to provide a duress alarm

63. [63]
    The plaintiff contends that a reasonable employer would have provided a duress alarm to the plaintiff. It is readily accepted that the provision of a duress alarm would not have summoned assistance in a way that would have prevented the sexual assault. However, it is argued that such a device would act as a deterrent to the commission of a sexual assault by an assailant.

64. [64]
    I do not consider that knowledge of the existence of a duress alarm would guard against the risk of a sexual assault by a resident at Lilliput Caring. The unpredictable and at times irrational behaviour that might be exhibited by a person afflicted with a serious mental illness or chronic addiction at a time when their capacity to understand what they are doing might be deprived, would not be impacted by knowledge of the existence of a duress alarm.

65. [65]
    Sexual assaults are often committed, in the most unlikely and brazen of situations. Those who commit them often do so in situations which are fraught with risk.  The presence of a duress alarm which could not possibly summon assistance in time to prevent the assault is unlikely, in my view, to act as a deterrent. 

66. [66]
    I do not consider that Blue Care breached its duty of care by failing to provide a duress alarm.

Failing to require workers to attend and work in pairs

67. [67]
    The plaintiff contends that Blue Care should have had a system where two workers attended the hostel together. After the assault, Blue Care changed its system so that two workers attended Blue Care together and provided services to clients in close proximity to each other. That was done to improve the workers' safety.

68. [68]
    The plaintiff suggests that a system ought to have been developed where two carers worked together for the one client. Such a system would mean that the work could be completed in half the time, so it would not likely impact the cost of providing the services. There is no evidence that such a system could not have been accommodated within the NDIS funding arrangements available to a particular client.

69. [69]
    It is accepted that Mr C's services were provided through funding from the NDIS.  Mr C did not himself require two carers, but the provision of two carers is said to be necessary to guard carers against a risk of violent or sexual assault. Whilst it may be accepted that two carers could not be provided without NDIS approval, there is no reason to think that if the cost were neutral, that approval would not have been given.

70. [70]
    The defendant contends that there was no reason to establish a system whereby two workers would attend at the same time and work in close proximity to each other, even if for different clients. Until the plaintiff was assaulted, the need to have done this had not manifested because Blue Care was aware of no other incident.
71. [71]
    Experience has shown that sexual assaults are often, indeed rarely reported immediately.  There are many reasons why a person may not complain immediately.  If a risk of sexual assault was reasonably foreseeable it is no answer in my view to say that the absence of any previously reported incident meant that Blue Care was not required to take the precaution of having two workers attend at the same time to perform their duties. 

72. [72]
    Given the difficulties that residents of Lilliput Caring experienced and that the workers were required to work in the men’s accommodation area where residents were able to move about in close proximity to the workers, I consider that the defendant ought to have adopted a system of work that involved sending two workers to Lilliput Caring to work within close proximity to each other so that if a worker was required to enter a communal area, for instance, where other residents might attend, a second worker would be available to be present. 

Did the defendant’s breach of its duties cause the plaintiff's psychiatric injury?

73. [73]
    Two elements are necessary to establish that a breach of duty caused the particular injury. First, the breach of duty must be an essential condition of the injury's occurrence. Second, it is appropriate for the scope of the liability of the person in breach to extend to the injury caused.

74. [74]
    It is common ground that the traumatic event, the sexual assault, caused the plaintiff to suffer chronic post-traumatic stress disorder. The plaintiff must show on the balance of probabilities that Blue Care’s negligence was a necessary condition of the occurrence of the particular harm, that is a condition which must have been present for the harm to have occurred. Where more than one condition is necessary to account for the occurrence of the harm, it is sufficient if the defendant’s conduct contributed to the occurrence of the harm.^[12]

75. [75]
    The plaintiff contends that the precautions proposed of providing a duress alarm; working in pairs, or not working at all at Lilliput Caring would have protected the plaintiff from the psychiatric injury. For the reasons I have already expressed I do not consider that the provision of a duress alarm would have acted as a deterrent to an assailant and would therefore have protected the plaintiff from harm. 

76. [76]
    As to working in pairs, I am satisfied that had the defendant undertaken a risk assessment of Lilliput Caring it would have arranged for the plaintiff to work with another person in close proximity.  Had the plaintiff been working with another person in close proximity the sexual assault would not, in my view, have occurred.  From viewing the CCTV footage, it very much appears that Mr L lured the complainant into his room before closing the door, preventing any other person seeing, stopping or even querying what he was doing. Mr L stands in the doorway to his room watching as the plaintiff moves down the hall before motioning her to him.  He loiters in his doorway rather than moving towards her to speak to her.   Had there been another person working with the plaintiff in the room, Mr L would have appreciated the likelihood of intervention from that other person and would not have taken the risk of sexually assaulting the complainant.  Even if there was another person working in close proximity to the plaintiff but not in the room with her (as was the system put in place by Blue Care subsequent to the assault), I consider that the sexual assault would not have occurred.  It was the plaintiff’s presence working alone in the hostel that emboldened Mr L to lure her into his room and to close the door and sexually assault her. 

77. [77]
    Alternatively, the plaintiff contends that if this measure of working in pairs would not have prevented the sexual assault, then Blue Care ought not to have allowed the plaintiff to work at the hostel.  As I have indicated, the risk of a sexual assault occurring at Lilliput Caring was reasonably foreseeable.  The nature and gravity of that risk is such that Blue Care ought not to have allowed the plaintiff to work at Lilliput Caring without putting precautions in place to protect her from a sexual assault by one of the residents.  If they could not do this, they ought not to have allowed her to work at Lilliput Caring. 

78. [78]
    Again, it is no answer that Blue Care were not aware of any previous incidents.  The risk of a sexual assault was a real one and a reasonably foreseeable one. 

79. [79]
    I am satisfied on balance that the defendant's breach of duty caused the plaintiff's injury.

Should the plaintiff’s damages be reduced on account of her contributory negligence?

80. [80]
    The defendant contends that the plaintiff failed to take reasonable care for her own safety by failing to follow the training provided and by only providing services to residents of Blue Care. Accordingly, she exposed herself to a risk of injury which was reasonably foreseeable and she suffered an injury within the class of risk to which she was exposed.^[13]

81. [81]
    The defendant contends that the plaintiff failed to comply with the instructions given by Blue Care which were directed towards her health and safety in that she failed to only provide services to Blue Care clients^[14] and in entering Mr L’s room to assist him failed to take account of the obvious risk that doing so involved^[15].

82. [82]
    The plaintiff accepted in cross-examination that she was only to provide services to Blue Care clients.  However, it is important to recognise that the plaintiff was not aware, when Mr L asked her to help him make his bed, whether he was a client of Blue Care.  She had not seen a care plan for him and had not provided services to him in the past, but that does not mean that she knew that he was not a client of Blue Care.
83. [83]
    The plaintiff did not know what risk, if any, Mr L posed to her.   Mr L had not been assessed by Blue Care as he was not a client of Blue Care.  The defendant contends that in circumstances where the plaintiff did not know what risk Mr L presented, she should not have entered his room as it was isolated from help.   The plaintiff was isolated from help however, because of the negligence of Blue Care. 

84. [84]
    Further, I do not consider that had the plaintiff turned her to mind to the lone worker training that such training would have resulted in her appreciating a risk of a sexual assault that Mr L posed.  As indicated the training was directed at physical assaults and not sexual assaults.  The SAFER and POPS model does not suit the circumstances of a sexual assault.   I do not consider, as contended, that had the plaintiff identified the exit route, being the door to the room, that she would have avoided the sexual assault.  Once the plaintiff was in the room alone with Mr L with the door closed, there was little if anything she could have done to have prevented the sexual assault.  

85. [85]
    The defendant further contends that, in addition, the plaintiff was told by Ms Aaron, the Director of Lilliput Caring, two days earlier that she was not to enter Mr L's room. The plaintiff denies this was said to her.

86. [86]
    As indicated, I found the plaintiff to be a truthful and reliable witness. With respect to Ms Aaron’s evidence, I do not accept that she told the plaintiff not to enter Mr L’s room.  I did not find Ms Aaron to be an impressive witness. Her evidence as to the risk assessment that she said the management of Lilliput Caring undertook was substantially different to the evidence the manager of Lilliput Caring, Ms Paula Murphy gave.  More significantly however, Ms Aaron’s evidence as to the risk assessments undertaken of Mr L differed significantly from what she wrote in a letter in response to being served with a Notice for Non-Party Disclosure.

87. [87]
    Had the conversation between Ms Aaron and the plaintiff occurred, I would have thought it likely that the plaintiff would have exhibited at least some concern or hesitance in entering Mr L's room, but it is clear from the CCTV footage that she held no concerns at all about entering Mr L’s room. 

88. [88]
    The plaintiff was employed as a personal care worker. Her work, which she loved, involved providing care to some of the most disadvantaged people in the community. Such a role requires a great deal of empathy. By the very nature of the role, the qualities of a personal carer include caring deeply about other people and their well-being, being patient, reassuring and compassionate.  A disadvantaged person living at the hostel asked for assistance making his bed. It is unsurprising that a caring, empathetic, and compassionate person would provide such simple assistance.  I do not consider that the plaintiff acted contrary to any instructions she was given.  Her conduct was not negligent.  At most it was inadvertent. 

Quantum of damages

89. [89]
    Given the plaintiff is successful in her claim, I must now assess the damages to be awarded.

General damages

90. [90]
    The plaintiff was born on 3 December 1997. She was 22 years-of-age when she sustained the workplace injury. She is now 27 years of age.
91. [91]
    The plaintiff claims general damages as compensation for pain and suffering and loss of amenities of life suffered as a result of the injury. General damages are assessed according to an injury scale value (ISV) for the injury.  The WCRA section 306P and schedule 9 part 2 of the WCRR provide how damages are to be assessed. 
92. [92]
    Dr Storor (for the plaintiff) assigned a PIRS rating of six percent. Dr Richardson (for the defendant) assigned a PIRS rating of four percent.  A PIRS rating of four - six percent correlates to an ISV between 2 and 10.^[16]
93. [93]
    Other matters which may affect the ISV include degree of insight, age and life expectancy, pain and suffering, loss of amenities of life, the likelihood that difficulties would have emerged in any event and if there is extreme psychological trauma, for example, intense helplessness or horror, the immediate adverse psychological reaction.^[17]
94. [94]
    The injury the plaintiff suffered occurred when the plaintiff was only 22 years-of-age and was only a few years into her working life.  The nature of the incident, being a sexual assault, was unsurprisingly extremely distressing for her. The fact such assault was committed by a person who was unknown to the plaintiff, and that it occurred in a workplace setting where the plaintiff had a right to feel safe likely amplified such distress.
95. [95]
    The plaintiff had only recently become engaged to her now husband and the injury affected both her relationship with her husband and her broader home life.  Having a child has motivated the plaintiff to develop insight into her illness and its impact upon her life.  She no longer uses medication or drugs to control her symptoms.  She continues to see a psychologist as and when she needs to or when her parental responsibilities allow her to.  She is motivated to work and has attempted to return to work in different roles.  She requires a supportive workplace in order that she can work at her own pace and deal with any situations which might trigger her symptoms.  She has found her husband’s business to be such a supportive workplace.  She still continues to limit her contact with people she does not know.  She has been able to return to enjoying her leisure and social activities so long as she is accompanied by friends or family. 
96. [96]
    The psychiatric evidence demonstrates that the plaintiff was likely vulnerable to developing PSTD however it is unlikely she would have developed PTSD without the sexual assault which was perpetrated on her. 
97. [97]
    I consider that the ISV should be assessed at four to properly reflect the seriousness of the pain and suffering and loss of amenities of life suffered by the plaintiff as a result of the injury.  I have assessed a higher ISV than that which would directly correlate with Dr Richardson’s opinion under the legislation to account for the other matters I considered relevant, as set out at [94] in particular, her young age and the very significant impact that the sexual assault had on the plaintiff initially. 
98. [98]
    An ISV of 4 corresponds to an award of general damages of $5 800.^[18]

Special damages

99. [99]
    The parties agreed that the amount that should be allowed for past special damages is $11 300. 

Fox v Wood damages

100. [100]
     The principle in Fox v Wood^[19] entitles a plaintiff to recover additional income tax paid in respect of refundable WorkCover receipts. The plaintiff claims these damages to the amount of $131.00.

Past Economic loss

101. [101]
     The plaintiff seeks an award of damages for economic loss as a result of the injury suffered.  She never returned to her role as a personal carer after the sexual assault.  It is common ground that she will never be able to work as a personal carer again.  The plaintiff attempted to perform an administrative role with Blue Care but ultimately resigned.  She obtained work with a friend in a restaurant for a period and has worked for her husband’s business part-time.  
102. [102]
     I accept the plaintiff’s calculation of past economic loss as $85 992.  It is less than that calculated by the defendant but properly takes into account that the plaintiff took some time off work after the birth of her son. The plaintiff has calculated her economic loss on the basis that but for the assault she is likely to have continued in her employment as a personal care worker earning $620 net per week.  For the period up until her son’s birth that loss is calculated at $620 x 120 ($74 400) less her actual earnings for that period ($27 408) totalling $46 992. 
103. [103]
     For the subsequent period the plaintiff assisted in her husband’s business as well as caring for her young child. The plaintiff suggests that the best way to assess her loss in these circumstances is to say that but for the injury the plaintiff is likely to have been doing some outside paid work and the remuneration she would have earnt from that would at least have been commensurate with her earnings from the restaurant, which were modest. 
104. [104]
     The plaintiff earnt $250 net per week whilst working at the restaurant.  The economic loss is $39 000 over 156 weeks.  The combined total is $85 992. 
105. [105]
     Interest on that amount less WorkCover benefits paid ($9 057.37) over five and one-half years at 2.0105 percent totals $8 507.24. 
106. [106]
     Loss of superannuation benefits at an average of 10.1 percent is $8 685.19. 

Future economic loss

107. [107]
     Evidence was given by two psychiatrists in the trial.  The plaintiff called Dr Storor and the defendant, Dr Richardson.  Each of the psychiatrists saw the plaintiff on two occasions.  Each of the psychiatrists saw an improvement in the plaintiff’s symptoms over time.  Dr Storor considered that the plaintiff’s ability to work was significantly impaired at the time of his first consultation in January 2021.  By the time he saw her in March 2024 he considered that she had improved.  He said that she still experienced flashbacks, intrusive thoughts of the assault, nightmares of the assault and psychological distress when reminded of the assault, a symptom readily apparent to me during the course of the trial when the plaintiff was giving evidence and sitting in the gallery.  
108. [108]
     It is uncontroversial that the plaintiff is not suited to returning to work in aged care.  Such a return would result in a deterioration of her psychiatric condition and an exacerbation of her symptoms.  Dr Storor considers that the plaintiff is now suited to less stressful duties in her work of no more than 20 hours per week.  He considers that her symptoms will, for the foreseeable future, restrict her capacity for work.  She will struggle with the pressure of time, be less productive due to her concentration difficulties and have difficulty with interpersonal relationships in the workplace.  She will benefit from a supportive employer. Her employment prospects in the open market are significantly reduced compared to pre-injury. 
109. [109]
     Dr Richardson also considered that there had been improvement in the plaintiff’s presentation between his first consultation in February 2022 and in May 2024. Dr Richardson, like Dr Storor, considered that the plaintiff’s condition when he first saw her was quite severe but she had progressively been able to return to work in a limited capacity, with her husband, over time.  This was a quieter and safer environment for her which allowed for the support of her husband and wider family.     Dr Richardson considered that the plaintiff was motivated to return to work in a greater capacity.  She indicated that she would like to do more to contribute to her husband’s business but had to juggle her family responsibilities as a mother of a young child.  Dr Richardson considered that over time she should be able to increase her hours progressively.  He accepted in evidence, however, that her psychiatric condition may result in her experiencing some heightened, exaggerated response to an anxiety trigger, out of keeping with what would be expected of a person without the condition.  That is an ongoing symptom profile that might be expected.  Dr Richardson said of the plaintiff that she had shown commendable drive in returning to work and increasing her hours to beyond 20 hours per week. As she grows in confidence at work, Dr Richardson would expect that any exacerbation of her anxiety and mood states will be temporary and that the plaintiff will be able to understand where that is coming from and take appropriate steps such as seeing her general practitioner or psychologist and taking comfort and security from her family and friends. At some point “down the track” Dr Richardson would expect that the plaintiff will be able to return to work in a full-time role. 
110. [110]
     As indicated the plaintiff impresses as a young woman with motivation to return to work full-time in order to contribute to the financial needs of her family.  She is also expecting her second child and is a devoted mother who has demonstrated that she is desirous of providing care for her children when they are young.  I accept that she will never be able to return to a personal care role.  On balance I consider that at some point in the future she will be able to return to full-time work in a supportive environment.  She will continue to be at a disadvantage in the open labour market given her ongoing symptomatology and her inability to undertake a carer role for which she has qualifications.  
111. [111]
     The determination of the plaintiff’s future economic loss involves determining as best as one can what would have happened if she were not injured and what will happen in her injured state.  Damages for loss of earning capacity can be awarded where that capacity has been diminished and the incapacity may be productive of financial loss.  It is sufficient for the plaintiff to prove that there is a chance of her injury being productive of a financial loss.^[20]
112. [112]
     The plaintiff claims future economic losses compensable on a loss of $310.00 net per week over 40 years (to age 67, 5% multiplier 917.5)^[21] less a deduction of 10% for contingencies, totalling $255 982.50. That loss is calculated on the basis of the plaintiff only being able to work for 20 hours each week for the remainder of her working life.   The defendant contends that the plaintiff’s current earnings are now exceeding her income at the time of the incident and there is no ongoing loss of earning capacity.  It is accepted however that there is a disadvantage to her on the open labour market.  The defendant contends that the plaintiff’s future economic loss should be assessed at $30 000. 
113. [113]
     While I am of the view the plaintiff will continue to experience limitations in the number of hours she can work for some period into the future because of her injury, I agree with Dr Richardson’s assessment that the plaintiff will, as she matures and grows in confidence, continue to learn and implement coping strategies which will allow her to return to full-time work. 

114. [114]
     I further accept that the plaintiff will continue to experience triggers that may result in periods of reduced working capacity.  The impact of these setbacks will be moderated by the plaintiff’s natural maturation and the compounding experience she will have in how to mitigate the effects of triggering events.
115. [115]
     The plaintiff however will remain at a disadvantage on the open labour market because of her injury.  She currently undertakes administrative work for her husband’s cabinetry business and is therefore shielded from the added stresses of a job outside her support system.
116. [116]
     The assessment of the plaintiff’s future economic loss can only be made on a global basis rather than by reference to a defined weekly loss.  There are too many factors which are not capable of calculation.  The following are the assumptions I make in determining a global award:

     1. The plaintiff is now only 26 years of age.  She is likely to have worked into her late sixties.  She is now earning more in her husband’s business than she was previously receiving but she has a permanent psychiatric condition which currently limits her capacity to perform full-time work and will do so for some time.
     2. The plaintiff is a mother to a young child and is expecting a second child soon.  Working part-time in her home is suitable to her whilst her child/children are very young. 

     3. The plaintiff will continue to experience improvements in her working capacity as she matures.  She will likely be able to return to full-time work in the future.  However, there will continue to be periods where her working capacity is reduced due to unexpected re-traumatisation. 

     4. The plaintiff will continue to require a supportive workplace for some considerable time into the future. 
     5. The plaintiff’s future employment will probably lie in administrative roles. 

117. [117]
     If the plaintiff worked for another 40 years part-time her future economic loss would be $255 982.50 allowing for a ten percent reduction for contingencies.  If the plaintiff’s only loss is solely the disadvantage that she will experience on the open labour market based on the comparative cases provided to me, I would award $30 000.  However, the plaintiff’s true loss is somewhere between those figures as she will, I expect be able to return to full-time work in the future if she chooses to do so. She is currently not capable of working full-time and will not be able to do so for some period of time.  She has also been taken out of a job she loved and will never be able to return to it or to any job involving caring for others. 
118. [118]
     If the plaintiff’s loss was $100 per week the present value of her future loss would be $91 750.^[22] For some reasonable period of time until she improves further, her loss will be greater than $100 per week. Even then she will continue to experience triggers that may result in a reduced working capacity.  She will continue to suffer disadvantage on the open labour market as a result. Doing the best I can, I consider that a global award of $120 000 for future economic loss is appropriate. 
119. [119]
     Superannuation at 11.33 percent is calculated at $13 596.

Future expenses

120. [120]
     The plaintiff claims future expenses in relation to psychological counselling required totalling $2 500.00. In his report Dr Storor recommended further counselling of at least 10 sessions at $250 per session.  Dr Richardson accepted that the plaintiff may require further counselling in the future if she experiences some re-triggering of her trauma symptoms. 
121. [121]
     An award of $2 500.00 for future counselling seems moderate to me given how distressed the plaintiff still finds herself when she is experiences some re-traumatising phenomena. 

WorkCover refund

122. [122]
     The refund owed to WorkCover amounts to $17 238.45. 

Summary of damages

Orders

123. [123]
     Judgment for the plaintiff against the defendant in the amount of $239 272.98.