Habermann v Cook Shire Council

In this matter, Justice Henry usefully clarified the scope of the duty of care employers owe employees where there is a risk of injury caused by third parties. The Court found that where a foreseeable risk of harm caused by third parties is present, and an employer can take reasonable steps to mitigate those risks, then employers are, via their duty of care, obliged to take those protective steps to protect their employees. Justice Henry also clarified that the scope of the duty broadens as the employer’s knowledge and awareness of foreseeable risk of harm to its employees commensurately increases.

29 August 2025

Henry J

Background

The plaintiff, Ms Habermann, was an employee of the defendant, Cook Shire Council, (“the Council”). The Council leased a property to Cayman Cruises Pty Ltd (“Cayman Cruises”). One of the principals of Cayman Cruises was Ms Roberson. In a debt proceeding the Council brought against Cayman Cruises for unpaid rent and council rates in 2015, Cayman Cruises produced a fabricated email in February 2017 apparently from Ms Habermann to the CEO of the Council. [67]. In that fabricated email, Ms Habermann refers to a local Aboriginal Corporation as “dirty bastards”, carrying with it racial connotations toward Indigenous Australians. [40].

The Council gave an undertaking to Cayman Cruises in February 2017 to commission an investigation into, and produce a report on, the email, by March 2017. [108]. While a report was produced within that time, which indicated the email was fabricated, the Council did not disseminate the report to Cayman Cruises. [131]–[134]. After several months of inaction, Ms Roberson gave the fabricated email to her assistant in July 2017, who sent it onto a member of the Queensland Legislative Assembly, who in turn tabled the fabricated email in parliament in August 2017. Ms Habermann was readily identifiable from the email. [144]–[146], [149].

Ms Habermann’s mental condition deteriorated drastically because of the resulting media attention. [170]. She ceased work in 2017 due to her mental condition, attempting to return to part time and remote work in 2019 through to 2021. In 2021, the Council terminated her employment, as from that time, she was unable to work. [181]–[185].

Did the scope of the Council’s duty of care extend to taking reasonable steps to prevent the psychiatric injury suffered by Ms Habermann?

The Court found that where there is a foreseeable risk of harm of the kind actually suffered by an employee, the duty of care of the employer extends to taking reasonable steps to avoid that harm. [258]. In the present case, this included disclosing to Ms Roberson in a timely manner the report which indicated the email was fabricated. [258]. His Honour found that the scope of the duty broadens as the employer’s knowledge and awareness of foreseeable risk of harm to its employees commensurately increases. [260].

The Court found, citing State of New South Wales v Napier [2002] NSWCA 402, that the combination of the inter-related elements of vulnerability, control, and assumption of responsibility can create a broad duty of care, and that each of these elements was present in this case: Ms Habermann was vulnerable to the harm of the email being propagated in the public; the Council had exclusive control over the investigation of the email; and the Council assumed responsibility for commissioning and disseminating the outcome of the investigation. [267]. As such, Henry J found the Council’s duty of care included preventing the specific psychiatric injury suffered by Ms Habermann. [271].

Did the scope of the Council’s duty of care extend to taking reasonable care to prevent foreseeable risks of injury to Ms Habermann posed by third parties?

The defendant promoted that the answer to this question was no, because they were not in control of the third parties which caused the injury. [11]. The defendant relied upon Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, where the High Court found that a shopping centre was not responsible for injury caused by an attack in the centre’s carpark, as: its duty of care did not extend to protecting against injury resulting from the criminal behaviour of third parties; [14]; and the common law duty of care does not ordinarily impose liability for omissions. [15]. Justice Henry noted, however, that in that case, the High Court indicated these propositions were subject to exceptions, depending on the nature of the relationship between the parties, including the relationship between employers and employees. [15].

Citing Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070, Public Transport Corporation v Sartori [1997] 1 VR 168, and Fraser v State Transport Authority (1985) 39 SASR 57, which all involved, appositely, both an employer/employee relationship, and criminal conduct by third parties, the Court found that control over a third party is not required for liability to be imposed. [21]–[24]. Justice Henry reasoned so, since: third parties can be materially influenced, and deterred by, protective measures taken by employers; [21]; and the presence of the asymmetric power relationship between employees and employers, which often requires employees to be exposed to harm, can oblige employers to take protective steps. [21]–[22]. The Court found that where a foreseeable risk of harm caused by third parties is present, and an employer can take reasonable steps to mitigate those risks, then they are, via their duty of care, obliged to take those protective steps. [24]. Justice Henry found there was a foreseeable risk of psychiatric injury if the fabricated email was perpetuated in the public domain. [253].

Did Council breach its duty of care?

In assessing whether an employer has breached a duty of care, the Court explained that s 305B Workers Compensation and Rehabilitation Act 2003 informs what constitutes the “reasonable steps” employers are required to take. [277]. Specifically, determining whether there has been a breach of duty requires assessment of: whether the risk was foreseeable; whether the risk was not insignificant; whether a reasonable person in the circumstances would have taken the precautions; the probability of the injury occurring if care was not taken; the likely seriousness of the injury; and the burden of taking precautions. [282].

In the present circumstances, the step of merely revealing to Ms Roberson that the email was fabricated was found to be a reasonable step the Council should have taken. [283]. Hence, Justice Henry found the Council breached its duty of care. [284].

Did the Council’s breach of that duty of care cause Ms Habermann’s psychiatric injury?

The Court found, in applying the test under s 305D Compensation and Rehabilitation Act 2003, the Council’s breach of its duty caused the injury to Ms Habermann, given, on the balance of probabilities, the email would not have been tabled in parliament had the Council informed Ms Roberson of its fabrication. [286].

Disposition

In the result, the Court found in favour of Ms Habermann, ordering damages of $2,359,037.64. [374].

S Robinson