In personal injury matters, it is an accepted precedent that an employer does not breach a duty of care to take precautions against risk of injury to a worker unless:
- The risk was foreseeable (that is, a risk the employer knew or ought reasonably to have known);
- The risk was not insignificant; and
- In the circumstances, a reasonable person in the employer’s position would have taken the precautions.
In this article, we will be examining part (c), and what it means for an employer to take precautions to prevent a psychiatric injury. This is part of exercising employers duty of care.
Proving liability for psychiatric personal injury is typically more challenging than proving liability for physical injury. When it comes to psychiatric injury alleged to have been caused by the employer, there are several factors which will be taken into consideration when determining whether it was reasonable for an employer to take certain precautions to prevent the injury.
Risk assessments should be carried out, much in the same way that an employer would do for preventing physical injury. Where there is a foreseeable and significant risk to an employee, the employer should consider what precautionary measures, including training and procedures, need to be taken to both prevent and respond to a traumatic incident in the workplace.
If an employer fails to consider and implement precautionary measures, this will contribute to an assessment of whether they fulfilled their duty of care to prevent psychiatric injury. This is especially relevant in occupations that are highly stressful or emotive, such as social work, emergency care, counselling and youth work.
This issue was recently considered in the case of Greenway v The Corporation of the Synod of the Diocese of Brisbane (read the full case note here) in which the applicant, Ms Greenway, worked for Anglicare as a residential carer for young people. On the night of the incident, Ms Greenway (who was the only worker in the house at the time) was assaulted and threatened by a young person in her care. The young person became agitated after Ms Greenway refused to take him to visit a friend. In his anger, the young person verbally abused Ms Greenway, threw a phone at her, kicked in a window and then threatened her with a large shard of glass.
While the incident was occurring, Ms Greenway spoke with her team leader (Mr Mafulu) on the phone. Mr Mafulu became aware, through this phone call and hearing the commotion going on, that the young person was being aggressive. Mr Mafulu was also aware of the young person’s aggressive history. Ms Greenway ended the call by saying that she would call Mafulu back.
Ms Greenway was able to calm the young person down and de-escalate the situation, after which time she phoned Mr Mafulu and informed him of what had happened and how she had calmed the young person down. Mr Mafulu made the decision that he did not need to attend the house, as Ms Greenway had de-escalated the situation, and did not offer to send a second staff member to assist her; Ms Greenway did not at any time ask for help. Ms Greenway remained with the young person for the remainder of her shift which was throughout the entire night and until the afternoon of the following day.
Ms Greenway was not physically injured but sustained a psychological injury, partly because she was required to care for the young person alone, after the assault.
It was decided that Anglicare breached it’s duty of care by failing to take reasonable precautions, including:
- Established guidelines for on call Team Leaders to support workers caring alone for young people with complex or extreme support needs; and
- Trained on call Team Leaders in how to assess a worker’s welfare in the aftermath of a crisis, considering emotional and psychological issues as well as physical safety.
It was also decided that the breach of the employers duty of care caused the injury, in that by failing to take these reasonable precautions Anglicare had not properly trained Mr Mafulu in how to handle such circumstances. Consequently, Mr Mafulu provided an inadequate response to the situation which resulted in Ms Greenway’s ongoing exposure to the potential of further harm (through the night and into the following day) and contributed to her injury.
On this basis, damages were awarded to Ms Greenway in the amount of $454, 935.68.
This case highlights several factors that are relevant in determining whether an employer has discharged their duty of care to an employee, including the provision of adequate employee training in how to respond to a workplace incident, and the impact of employer actions leading up to and following a traumatic incident.
If an incident occurs in the workplace, an employer must be mindful of how their actions in dealing with the matter may cause, or prevent, further injury to an employee. It is likely that a failure to train staff in how to recognise and deal with a psychologically challenging event will be a breach of the duty of care, especially where it is reasonably foreseeable that this type of incident could occur.