Australia: Employer found not liable for client assault on disability support worker at residential care facility

Earlier this month, Queensland's Supreme Court found in favour of an employer in a common law claim for damages brought by a carer who was assaulted by a client at a residential care facility operated by the employer. Both the employer and its workers' compensation insurer were represented by Senior Associate Anna Hendry in this claim which, in addition to highlighting the importance for an injured worker to establish causation, discussed the utility of various preventative measures relied upon by the injured worker as a basis for asserting negligence against the employer.

In this alert, Partner Robert Tidbury and Solicitor Matthew Boyce, discuss the case of Stokes v House With No Steps [2016] QSC 79.

Key Points

  • In addition to proving that the employer was in breach of its duty of care, the injured worker must establish causation in order to succeed on liability.
  • The fact that the plaintiff can point to various measures which, had they been implemented, may have made the workplace safer generally, is not by itself sufficient to establish causation. Instead, the injured worker must show that those measures would have prevented or minimised the risk of injury complained of.
  • The defendant's evidence - that it was a not for profit organisation which could not afford the placement of a second carer at the residential care facility - was crucial to the Court's decision that the burden of taking this particular precaution was excessive for the purposes of section 305B(2)(c) of the Workers' Compensation and Rehabilitation Act 2003. It was accepted by the court that a reasonable person in the position of the defendant would not have employed a second carer at the facility.


The plaintiff was employed as a disability support worker for House With No Steps (HWNS), a non-profit, non-governmental organisation which provides disability services to the Queensland Department of Communities, Child Safety and Disability Services. She worked at a HWNS-managed property in Deception Bay which housed two clients and one carer at all times. One of these clients, NM, had been diagnosed with a Severe Intellectual Disability and Autism Spectrum Disorder. NM was known to unexpectedly grab, bite and scratch carers.

On 15 August 2010, the plaintiff was sitting at a table with NM and the other resident of the house. The plaintiff briefly went to her office before returning to the table. Upon her return, she found NM biting down on a plate. Concerned he may cut himself, the plaintiff attempted to take the plate. Suddenly, and without warning, NM lunged at the plaintiff and grabbed her around the throat. NM shook the plaintiff and attempted to bite her as she struggled to remove his grip.

The plaintiff eventually secured both of NM's hands by his side during the struggle. Once NM settled down, the plaintiff locked herself in the house's office, which required a key to enter. As a result of the incident, the plaintiff suffered some minor physical injuries and a psychiatric injury. The plaintiff has been unable to work since the incident.

Duty of Care Issues

The plaintiff alleged HWNS had breached its duty of care by:

  • failing to employ a second carer to help manage and care for NM;
  • failing to equip the plaintiff with a portable alert transmission advice or duress alarm; and
  • failing to provide "swipe card" access to the office.

In regard to the first allegation, the Court had to consider whether a reasonable person in the position of the defendant should have either employed a second carer, or placed NM at a different location with a higher carer-to-client ratio. Evidence was adduced which suggested placing a second carer on a 24 hour basis would have cost HWNS in excess of $220,000.00 per year. The defendant subsequently submitted it was neither reasonable nor affordable for it to have employed a second carer at the facility.

Conversely, the plaintiff argued the defendant's standard of care ought to be measured by reference to what an employer with adequate resources would have done in the situation.1 His Honour rejected this submission and pointed to the significant social utility of organisations, such as the employer, caring for clients like NM. Further, His Honour observed there was no evidence to suggest NM's needs were not being met in the Deception Bay residence. As such, a reasonable person in the position of the employer would not have employed a second carer in view of the excessive expense involved, nor would they have removed NM from the residence. No breach of duty was found in relation to this allegation.

By contrast, His Honour found the defendant had breached its duty of care by failing to implement the second and third measures raised by the plaintiff. In the absence of a second carer, those measures were found to be both reasonable and relatively inexpensive precautions in view of the noted behavioural history of NM.

Causation Issues

While the Court found that the defendant was in breach of the duty of care it owed to the plaintiff, the defendant was successful in defending liability. This was because the plaintiff was unable to establish that her employer's breach of duty caused the injuries she inevitably suffered.

In relation to the failure to provide a duress alarm, it was noted the nearest police station was 5.8km away. However, the plaintiff adduced no evidence to enable the Court to determine how long a police response may have taken had such an alarm been used. Therefore, it was not proven "to any degree of likelihood that the plaintiff would have been assisted in time" or whether police intervening before the incident's eventual conclusion would have prevented the loss and damage she suffered.

Likewise, in respect to the failure to provide swipe card access to the office, His Honour noted that the claimant did not seek refuge in the office until after the incident's occurrence. Therefore, the Court remained unpersuaded that the plaintiff would have opted to "make a run for the office" if there had been quicker access to that room using a swipe access card. Furthermore, the Court concluded it was just as likely the plaintiff would have not released her hold on NM until he had settled down enough so that she could safely approach the door without risk of a further assault. As such, the failure to provide swipe card access to the office was not found to have been causative of the plaintiff's injuries.

His Honour dismissed the claim.


1 PQ v Australian Red Cross Society [1992] 1 VR 19

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