The implications of Brisbane Youth Service Inc v Beven [2017] QCA 211 Helen Whitehead 27 April 2018

Learning Outcomes The duty of care owed by an employer to an employee The scope and content of that duty The implication of this decision on employees in the community legal services sector Beven v Brisbane Youth Service Inc

The Primary Facts T's History with BYS JUN 2010 MAY 2009 SEP 2009 Ms Christie and Ms Turner discuss T and consider that she requires the services of a psychiatrist. MAY 2009 T referred to BYS for general counselling and drug intervention. She received services from Ms Turner and Ms Christie. SEP 2009 Ms Turner decides to cease in home support following written threats by T. NOV 2009 T makes sexual comments towards Ms Christie. Sexual test messages to Ms Turner continue. OCT 2010 Team meeting discusses T and the risks involved with her. Ms Beven felt confident she could support T. AUG 2009 T making frequent attempts to make "physical contact". Difficulty with "sexual boundaries" and working relationship with Ms Turner . OCT 2009 Text messages from T to Ms Turner seeking inappropriate relationship and sending pornographic images. DEC 2009 T begins to talk about wanting to "stalk, drug and rape". Ms Christie informs her superior. SEP 2010 Ms Christie approaches Ms Beven to provide support to T during contact with Child Safety and assist with Child Safety advocacy

The Primary Facts Weekly meetings Her own experience Case Notes KnowledgE of Ms Beven Ms Beven's knowledge Observations Her own experience Weekly meetings Case Notes Meeting on 14 October 2010

Employer's Duty Duty of Care Foreseeable Risk Reasonable Response NEGLIGENCE Duty of Care Foreseeable Risk Reasonable Response

Decision at First Instance breach of duty of care Atkinson J found that the defendant had breached this duty The risk that T would sexually assault or otherwise harm an employee was clearly foreseeable: Plethora of incidents; Illicit drug use. The risk could not be said to be insignificant. A reasonable person in the position of the employer would have taken precautions to avoid the risk by declining to offer services. Beven v Brisbane Youth Service Inc

Decision at First Instance Causation Atkinson J found that the plaintiff's employment was the major significant contributing factor to her injury. "This was not a case where the plaintiff suffered a psychiatric injury because of stress caused by stressful work which she had agreed to do as part of her contract of employment. This is a case where she suffered a psychiatric injury as a result of a sexual assault which happened during the course of employment." It was unlikely that the plaintiff would have developed her current psychiatric condition had the sexual assault not occurred. Her history simply contributed to the seriousness of the impairment. Beven v Brisbane Youth Service Inc

Decision at First Instance Damages General damages $65,950.00; Past Special Damages $314,930.10; Interest on past special damages $ 354.00; Future special damages $327,821.13; Past economic loss $251,037.15; Interest on past economic loss $ 7,282.00; Past loss of superannuation entitlements $ 15,788.00; Future economic loss $711,595.57; and Future loss of superannuation entitlements $ 78,275.51. Less WorkCover refund $ 264,394.11 TOTAL $1,508,639.35 Beven v Brisbane Youth Service Inc

Experience Knowledge Acceptance Appeal Ms Beven was an experienced social worker Experience Ms Beven had knowledge of the risks associated with providing services to T Knowledge Ms Beven accepted the risks associated with providing services to T Acceptance

Decision on Appeal "it is the employer that is in a superior position to assess risks and weigh them against the role and the duty of the institution of which the employee is a part and to determine whether to permit an employee to be exposed to a particular risk even if she has volunteered." Other relevant considerations T would not have been abandoned without assistance of any kind had she been discharged from the appellant's program. There were other institutions that would be better suited to providing assistance to her. The risk of sexual assault was reasonably foreseeable given T's tendency to sexualise her relationship with her support worker and the fact that two previous support workers had discontinued providing services to her due to inappropriate behaviour. The risk was clearly not insignificant because the previous support workers were no longer willing to take the risk. Beven v Brisbane Youth Service Inc

Decision on Appeal McMurdo JA in dissent The risk of psychiatric injury to the plaintiff was foreseeable but it would be an unreasonable constraint on the work of the defendant for it to be legally obliged to withdraw its services. The risk of such an incident happening at a department office was low given the nature of the meeting and so slight as to be insignificant. It it would have been sufficient for the appellant to simply cease home visits in response to the risk of harm. Beven v Brisbane Youth Service Inc

Implications What are your Obligations Role Ethical Legal

Implications Employer Obligations Identify Assess Develop Training Document Take Action

Implications Rights and Obligations of Employees Confidentiality Criminal Offence Risk to Safety Just Cause Reasonable Notice Consent

Questions or Comments? Beven v Brisbane Youth Service Inc

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