Judgement ruled in favour of Plaintiff in PTSD case

Gilmour v Blue Care [2024] QDC 189

Background

The Plaintiff was a 27-year-old former aged care worker, who suffered post-traumatic stress disorder as a result of a sexual assault at work in 2019.

The Plaintiff was required to attend a third-party residential hostel to provide care services to a client of the employer. The Plaintiff could not locate the client of the employer, and decided to carry on with other cleaning duties. The Plaintiff was approached and subsequently sexually assaulted by another resident of the hostel (not a client of the employer).

The Plaintiff suffered post-traumatic stress disorder as a result of the event.

The Defendant maintained:

1. The Plaintiff was trained to refrain from provide services to residents of the facility who were not clients of the employer. The Plaintiff was trained in dynamic risk assessment.  If she had adhered to that, she would not have entered the perpetrator’s room.
2. It was not practicable or necessary to have workers attend the hostel and work in pairs.
3. There was no significant risk known to the employer at the time of the incident that workers attending the hostel to provide care would suffer assault committed by residents of the hostel.

Decision

Her Honour Loury DCJ KC did not accept the Defendant’s contentions.  Finding in favour of the Plaintiff on the basis:

1. There was an absence of specific instruction by the Defendant for workers not to provide services to non-clients of the employer also residing at the hostel. The dynamic risk assessment training focused on preventing physical violence and dealing with conflict. It failed to address or provide workers with training or instruction in how to prevent or avoid a sexual assault.
2. The Defendant did change its system of work following the incident to have two workers attend the facility at the same time and work separately. The cost and burden to the Defendant in implementing this system was de minimis. The nature of the residents at the hostel (whom often suffered from mental or addiction disorders) and their close proximity to the workers of the Defendant necessitated such a system prior to the incident. It would likely have prevented the incident from occurring. If the Defendant could not provide such a system, the Defendant should not have required to the Plaintiff to work at the premises.
3. The Defendant ought to have been aware of certain features of the hostel that would have presented a heightened risk of assault and/or sexual assault to workers. The Defendant ought to have conducted an organisational risk assessment. The risk of a sexual assault at the hostel was reasonably foreseeable and ought to have been addressed more comprehensively by the employer prior to the incident. The absence of similar incidents in the past did not mean the assault was not foreseeable.

Judgement

Judgment was awarded in the amount of $239,272.98.