In Stokes v House with No Steps Jackson J of the Supreme Court of Queensland at Brisbane dismissed an injured worker’s claim for damages for personal injury after being assaulted by residents being cared for.
The injured worker was a residential care worker (carer). The carer was providing care to two residents, one of whom had autism. This resident had a history of physically assaulting carers which included grabbing their throats, scratching and biting them.
On 15 August 2010, the carer (a 40 year old woman weighing approximately 80 kg) was in a domestic setting caring for the residents who were at a dining table. Suddenly, one of the residents (the resident with a history of assaulting other carers by grabbing their throats) put his hands around the carer’s throat and attempted to choke her and bit her breast.
The carer suffered physical and psychiatric injuries.
The carer alleged that her injuries were as a result of a breach of the duty of care that the employer owed to her. The allegations of breach of duty fell into four main categories:
- The employer failed to provide two staff members;
- The employer failed to provide a duress alarm;
- The employer failed to provide a swipe card to enable the carer quick access to a room that could be locked; and
- The employer failed to adequately manage the placement of the resident.
The Court was satisfied that the employer breached the duty of care that was to the carer by failing to supply a duress alarm and a swipe card (to be able to access a locked room). The employer was not satisfied the employer breached the duty of care owed to her by failing to provide two staff members or failing to properly manage the residential placement of the resident.
Even after considering the funding structure pursuant to the statutory provisions of the Disability Services Act 2006, the Court was not satisfied that it was necessary for the employer, in all of the circumstances of this case and the risk of injury that even this resident presented, amounted to a breach of the duty of care owed. Further, the Court found that there was no evidence upon which a finding could have been made that the employer’s placement of the resident in this particular facility was a breach of the duty of care owed.
However, notwithstanding the Court finding that the employer had breached the duty of care owed with respect to the supply of a duress alarm and a swipe card, the Court was not satisfied that these breaches ‘caused’ the carer’s injury because there was no evidence that even with the activation of a duress alarm or even the provision of a swipe card that it would have changed the course of the attack upon the carer.
The Court found that for the carer to have succeeded in establishing causation she would have needed to adduce evidence the different outcome that could have been expected in the event that a duress alarm was provided or a swipe card was provided (for example, careful evidence setting out the distance and times involved had such measures been in place).
The carer’s claim failed.
WorkCover successfully defended the claim on behalf of the employer.
If the carer had of established liability, then the Court would have awarded her $775,048.00.
However, because the carer’s claim failed - the carer received no damages at all.