$1.5m payout: social worker assaulted by client


$1.5m payout: social worker assaulted by client

A social worker who was assaulted by a client was awarded damages of $1.5m because she subsequently suffered a serious psychiatric injury.

A social worker who was assaulted by a client was awarded damages of $1.5m because she subsequently suffered a serious psychiatric injury. The employer’s appeal was dismissed.

Support services to drug-dependent woman

A disadvantaged young woman, referred to as T, had been abused as a child and grew up with a history of violence, self-harm, drug use, poor mental health, suicide attempts, instability and overtly sexualised behaviour. In 2008, when aged 18, she had her first child, who was taken into care in September 2009. By 2010, she also had a second child. 

Brisbane Youth Service Inc (BYS) took on T as a client, aiming to help her with a drug and alcohol rehabilitation program and with parenting and housekeeping skills. However, T proved to be a difficult client. She told one of the BYS support workers that she wanted a sexual relationship with her and kept sending her inappropriate text messages and images. She also told a drug intervention worker about it and said she wanted to ‘stalk, rape and drug’ the support worker. Both these workers felt threatened by T and withdrew their services. 

BYS found a replacement in a psychologist who had specialised in conflict resolution management, youth homelessness, suicide prevention and sexual abuse. Rather than acting as an intensive support worker for the longer term, as the first two support workers had aimed to do, the psychologist was to provide a 10-week intervention program in parenting skills and assist T with her interaction with the children when she got them back. The program was mainly in the form of DVDs.

After a number of meetings from December 2010 into April 2011, a family group meeting on 13 April 2011 was attended by T, T’s mother and solicitor, two representatives from the Qld Department of Communities (Child Safety) and the psychologist. When the psychologist was seated next to T around a table, she felt T’s leg caressing her own leg. Then T brought her leg up between the psychologist’s legs to fondle her genitalia with her toes. The psychologist moved her chair, but T did it again. The psychologist told T to stop, but T said "you just need a good fucking lay" and continued being abusive. T’s solicitor then stopped the meeting. The psychologist was too distraught to drive herself home. 

Assault caused serious psychiatric injury

The psychologist took time off work but did not recover and could not return to work. She suffered a major depressive disorder and aggravation of a post-traumatic disorder which had been in remission. She had a pre-existing vulnerability because she, too, had been sexually abused as a child, although she believed the effects of that had well and truly been resolved. She had not even told BYS about it when she was employed. 

The psychologist brought an action in negligence in the Supreme Court of Qld against BYS, claiming it should not have allowed its employees to have any form of contact with T because it exposed them to a risk of suffering serious injury. BYS, on the other hand, alleged that the risk of psychiatric injury had been insignificant and the burden of taking precautions to avoid the risk of harm had not been low. BYS also pointed out that the psychologist had agreed to work with T. She had read reports by the two previous support workers who had dealt with T, so she had known about T’s excessively sexualised behaviour. 

Justice Atkinson accepted that providing a support program with the psychologist visiting T in her own home had created a relationship between them which had led to the assaults and concluded that, after the experience with the two previous support workers, BYS should not have offered any further services to T. Judgment was given for the psychologist and BYS was ordered to pay her damages totalling $1,508,639.

Did judge address the right issues?

BYS appealed, submitting that the trial judge had failed to address the right issues, namely whether the risk had been foreseeable and not insignificant, as required according to s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The employer also claimed that the judge had not adequately considered the psychologist’s extensive experience as a social worker, her access to resources and advice from BYS, her prior knowledge of the sexualised behaviour of T towards other employees, and the absence of any prior history of physical assault by T.

The evidence in the Court of Appeal showed that, although the psychologist had known that T had created difficulties for the two earlier support workers, she had not anticipated that her work with T would involve physical danger to herself. She believed her role was different because she was merely to deliver an educational program within a given time span. Her role did not include "supporting" T in relation to her mental and drug problems or sharing intimate details about T’s life, so she could not anticipate being exposed to a risk of actual assault.

The management plan BYS had set up for T in 2008 had included plans to help her reduce her drug dependence and develop a positive relationship with her children. The services offered over two years had not helped her achieve any of it. It would have been apparent to BYS by October 2010 at the latest that, if anything, T was getting more difficult and that working with her exposed employees to a not insignificant risk of physical or mental injury. 

What should a reasonable employer have done?

Justice Sofronoff 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". Even if the psychologist did not anticipate physical danger, "an 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," the justice said

The trial judge had been right. The employer in this case should have ignored the psychologist’s offer to work with T and referred T to other organisations, such as dedicated rehabilitation centres and/or psychiatrists, with expertise to deal with her problems. The risk of a sexual assault by T had been reasonably foreseeable because of her irrational sexual behaviour. It was accepted that psychiatric injury could result from physical assault. And since T was not a normal person, it was possible that an assault could occur anywhere – even at a formal meeting attended by a number of people.

By majority, the Court of Appeal dismissed the employer’s appeal.

Brisbane Youth Service Inc v Beven [2017] QCA 211 (22 September 2017)
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