Breach of care, but $455K payout for psych injury scrapped

Breach of care, but $455K payout for psych injury scrapped
By Maria Karlsson-Lilas on 13 June 2017 An appeal has scrapped a damages payout to a support worker who suffered a psychological injury after being threatened by a client.

The worker was staying alone overnight in a residential care facility when a teenage resident became abusive and aggressive.

Although the employer had breached its duty of care, the injury had not been proved to arise from this breach.

Traumatic incident at work

A community support worker was working alone at a residential care facility on 25 August 2013.

A resident, who was a 15-year-old boy, became verbally abusive and physically aggressive towards her.

He then threatened to kill himself by jumping through a glass window. He kicked it and broke a pane of glass. He picked up a large shard of glass and held it in front of him, telling the support worker he could "f**k someone with this".

The frightened worker, who knew the boy had a history of drug use and aggressive behaviour, was able to calm him down and disarm him. She believed he was under the influence of glue and gave him some medication before getting him to go to bed. She then rang her supervisor to report the incident.

The supervisor asked how she was feeling but did not offer to relieve her from her shift or send someone else to support her. He merely asked her to call a glazier to fix the window and said there was no need to call the police.

The support worker did not specifically ask for help either because she did not want the supervisor to think she was not competent to handle the situation. 

The window was fixed and the support worker was left alone all night in the house with the boy. She did not return to work after her shift was over the next morning.

She continued to suffer anxiety and panic attacks. She was diagnosed with chronic post-traumatic stress disorder (PTSD).

Employer breached its duty of care

The support worker brought a claim in the District Court of Queensland, alleging that her employer’s negligence had caused her a psychiatric injury and permanent impairment. It had failed to prevent the incident in the first place and failed to respond adequately when she reported it to her supervisor.

Judge Kingham established that the supervisor’s response had been inadequate.

According to the employer’s best practice, a team leader was expected to assist a worker to continue to provide care for residents in extreme situations.

However, the employer had not adequately trained its team leaders to provide support to workers or to assess their welfare, either physical or psychological, in the aftermath of a crisis.

Consequently, the judge concluded that the employer had breached its duty of care to the support worker and that this breach had caused her injury. She was awarded damages of $454,935.

Had the employer’s breach caused the injury?

The employer appealed, contending that the support worker had not established that its breach of duty of care had been a necessary condition of the occurrence of the injury – i.e. the factual causation – as required by s305D(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

In the Court of Appeal of the Supreme Court of Queensland, the evidence of two psychiatrists was that the threatening incident had been the primary cause of the support worker’s PTSD, and that the supervisor’s lack of effective support had been a secondary cause which had merely been an additional stressor.

Justice McMurdo noted that, "In none of that evidence did either psychiatrist say anything to the effect that the appellant’s response to the incident ... was an essential condition for the occurrence of her post-traumatic stress disorder".

Legislation required a ‘but for’ test

The District Court judge had not correctly applied a ‘but for’ test according to s305D(1) to establish whether the employer’s breach had caused the support worker’s injury, namely whether, but for the acts and omissions which had constituted the breaches of duty, her injury would have occurred. 

Justices McMurdo, Morrison and Bond agreed that the support worker had suffered a serious injury at work but that it was one for which factual causation had not been proved in the required way.

As a result, the employer’s appeal was allowed and the original judgment was set aside.

The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 (26 May 2017)


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