Emil Ford Lawyers

Providing Reasonable Care for Reasonable Carers

Risk management is an essential consideration for today’s employer. A recent decision of the Supreme Court of Queensland provides a helpful reminder of some of the core elements of a claim of negligence. In this case, Kelly was employed as a carer for a not-for-profit providing residential care for severely disabled clients. One of the patients in Kelly’s care was a young man with a history of violent behaviour, for whom the Employer had developed a detailed risk management plan.

In the course of providing care, Kelly was physically assaulted by the patient and later claimed to have suffered serious psychological and physical harm. Kelly alleged several ways in which her Employer had failed to take reasonable care, including:

  • Failure to employ a second carer;
  • Failure to provide a duress alarm;
  • Failure to provide swipe card access to the carer’s office.

In relation to the first issue, the Court found that employing a second carer would probably have prevented the harm suffered by Kelly. However, the Court found that, as the Employer was a not-for-profit organisation reliant on Government funding and could not afford a second carer for the facility, the Employer had not breached its duty of care - the burden of taking such a precaution was excessively high.

In relation to the provision of a duress alarm, the Court found that this was a reasonable precaution. Therefore, the Employer had breached its duty of care by failing to provide a duress alarm. Nevertheless, the Court later ruled that, given the short duration of the incident and likely police response times, Kelly had not proved that having a duress alarm would have prevented the assault and the harm suffered by her. The Court reached the same conclusion in relation to the provision of swipe card, rather than key, access to the carer’s office, noting that Kelly bore the onus of proof on the balance of probabilities.

Had the Employer been found liable, the Court said the damages would have been $755,048. This case is a reminder that risk management and the law of negligence remain important considerations for employers given that they owe a duty of care to their employees. It is important that an employer consider the foreseeable risks to employees arising from their work and implement reasonable precautions to avoid those risks.

One of the ways that an employer can do this is by providing employees with a workplace risk management policy.

Please contact or if you have any questions regarding workplace health and safety, or a workplace policy.

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