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

2. 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

3. 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

4. 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

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

6. 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

7. 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

8. Decision at First Instance
Damages
General damages $65,950.00;
Past Special Damages $314,930.10;
Interest on past special damages $ ;
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,
Less WorkCover refund $ 264,394.11
TOTAL $1,508,639.35
Beven v Brisbane Youth Service Inc

9. 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

10. 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

11. 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

12. Implications
What are your Obligations
Role
Ethical
Legal

13. Implications Employer Obligations Identify Assess Develop Training
Document
Take Action

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

15. Questions or Comments?
Beven v Brisbane Youth Service Inc

16. These materials are for training purposes only and are not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Please take legal advice before applying anything contained in these materials to specific issues or transactions. For more information please contact the presenters or your usual contact.
© Ashurst 2018