Brisbane Youth Service Inc v Beven

The court of appeal considered the liability of the employer of a social worker who suffered psychiatric injury after being sexually assaulted by a client (T) of the appellant. The appellant employer knew that T had a history of making sexual advances towards members of the appellant’s staff and that T had mental health and drug issues that were beyond the scope of the services offered by the appellant. In dismissing the appeal, the court rejected the suggestion that by agreeing to work with T, the social worker agreed to accept the risk of personal injury.  Further, the majority of the court also agreed with the trial judge that in the circumstances of this case, the appellant breached its duty of care to the social worker by continuing to offer services to T. 

Sofronoff P and Gotterson and McMurdo JJA

22 September 2017

The appellant, Brisbane Youth Service Inc, provides a range of professional services to disadvantaged young people in Brisbane, relevantly “people who have low incomes, family histories of abuse, experiences of detention and mental illness”. [183]. The respondent, an employee of the appellant, began to provide services to T in October 2010. [188]. T had, at this time, been the appellant’s client for 18 months. [189]. T had a history of making sexual advances towards members of the appellant’s staff.

In April 2011, the respondent attended a meeting with T, her lawyer, her mother, her nephew, and two representatives of the Department of Communities (Child Safety Services) to discuss arrangements for T’s contact with her children. [208]. During the meeting T began to move her foot up the respondent’s leg and caressed the respondent’s genitalia on the outside of her underwear with her toes. [208]. The respondent moved her chair but this occurred again. [208]. The respondent told her to stop which was followed by verbal abuse from T. [208].

Following this incident, the respondent suffered psychiatric injury. [210]. The incident aggravated a pre-existing condition. [211]. Consequently, the respondent was unable to work and became suicidal, and her illness caused the breakup of her marriage. [211].

The primary judge found that a duty of care was owed and that it had been breached (satisfying the requirements of s 305B of the Workers’ Compensation and Rehabilitation Act 2003).  The appeal to the Queensland Court of Appeal was dismissed (Sofronoff P with whom Gotterson JA agreed, McMurdo JA dissenting).

The President proceeded upon the footing that “the respondent’s case was that the appellant was negligent in allowing, permitting or requiring her to provide any services at all to T”. [113]. His Honour also noted that part of the appellant’s response to the respondent’s claim was “that the risks attended upon working with T were inherent in the respondent’s occupation as a social worker”. [133]. Although the appellant did not rely upon the doctrine of volenti non fit injuria as a defence, “parts of the appellant’s pleaded case raise[d] allegations which [were] alluringly close to a plea of volens”. [138]. His Honour said:

“The question of the safety of social workers is no different from the question of the safety of any workers whose occupation exposes them to identifiable risks of injury and the duty of care of an employer of social workers in this respect is no different in principle from the duty of care of any employer. … What is implicit in these pleas, but never attempted to be proven, was that because the respondent, as a social worker, had assessed or should have assessed for herself any risk that T posed to her, the appellant employer was absolved from any duty to take reasonable care to protect her against those risks.” [159].

His Honour rejected this implicit contention, stating that “[a]n employer is, or ought to be, in a better position to identify and to assess risks in the workplace and to determine the propriety of exposing its employees to them”. [160]. His Honour also emphasised: (i) “[t]his was a case in which the employer knew the risks that T presented to its staff”; (ii)  “[t]his was also a case in which the employer had an appreciation of its own limitations in dealing with some of the problems presented by T and knowledge of the existence of other services that were better suited”; and (iii) “[t]he employer also knew that its employees had a vocation which would impel them to make personal sacrifices if they believed that by doing so they might serve another human being”. [162]. His Honour concluded that it followed from this that: 

“the respondent’s agreement to do the contracted work and her offer to work with T were not inconsistent with either an appreciation on the part of the appellant that the performance of work with T exposed the respondent to a risk of injury or with the existence of a duty to prevent that risk from arising.” [163].

Turning to consider the requirements of s 305B of the Workers’ Compensation and Rehabilitation Act 2003, his Honour found that the risk of assault by T, including sexual assault, was reasonably foreseeable (s 305B(1)(a)). [171]. His Honour rejected the submission that “it could not reasonably have been foreseen that T would commit a sexual assault on the respondent at a formal meeting attended by a number of people.” [173]. Having regard to T’s particular circumstances, his Honour said that it was foreseeable that “an assault of the kind that actually happened could have happened and that it could have happened anywhere”. [173].

In addition, the risk of injury was not insignificant (s 305B(1)(b)). [174]. As for what the appellant should have done (s 305B(1)(c)), the primary judge had concluded that the appellant should have ceased offering services to T. [175]. The President agreed with this, noting that the “appellant’s breach was to continue to retain T as a client thereby exposing the respondent to the risk of sexual assault of the kind that was committed”. [175].

The Court accordingly dismissed the appeal. [177]. McMurdo JA would have allowed the appeal. His Honour accepted that there was a reasonably foreseeable risk of psychiatric injury and that consequently, a duty of care was owed. [186]. However, his Honour emphasised that the duty was not to avoid the risk in toto but rather “to act reasonably in response to it”. [186]. His Honour considered that the primary judge had failed to consider the critical question, which was “whether the only reasonable response to this risk was to discontinue the provision of services” to T. [186]. His Honour concluded that the discontinuance of all services was not the only reasonable response and therefore that the appellant should not have been found to have breached its duty to the respondent. [187]. 

J English