Brisbane Youth Service Inc v Beven  QCA 211 (16/8547)
Any organisation has a duty to prevent its employees, customers, consumers and volunteers from suffering damage (ie. personal injury, property damage or financial loss). If the organisation breaches this duty and if the breach is the cause of damage to a person to which the duty is owed, it may be found liable (legally responsible) for the damage caused.
There are some circumstances where it is well-established by the courts that a duty of care exists, including:
- employer to employee
- landlord to tenant
- service provider to customer
- road users to other road users
- schools to students
Outside the established categories, whether or not a duty of care exists needs to be determined by a court, having regard to the circumstances of the case.
The common matters taken into account in determining whether a duty of care exists are:
- the foreseeability (ie. predictability) of the damage suffered
- the degree of vulnerability of the person who has suffered the damage
- the ability of the person or organisation in charge to control or manage the risk of damage.
In all of the states and territories, the standard of care expected is the standard of ‘the reasonable person’ in the same position and with the same knowledge as the person being judged in negligence proceedings. If the organisation does not meet the applicable standard of care, it will be considered to have ‘breached its duty’ against a risk if:
- the risk was one which your organisation should have known about
- the risk was ‘not insignificant’
- a ‘reasonable’ organisation in the same position as yours, would have taken precautions against the risk.
In deciding whether a reasonable organisation would have taken precautions against the risk, a court will consider the social utility of the organisation’s conduct that created the risk. If so, the court will consider the benefit of your work to your community when determining whether there was a breach of duty. The court will also consider the burden for the organisation of taking precautions to avoid the risk and lastly the gravity of the risk which is its duty will involve a detailed assessment of what was reasonable conduct in all the circumstances of the case.
In a recent decision of the Supreme Court of Queensland, a not-for-profit organisation based in Queensland was found to have breached its duty of care to an employee. The employee was a family support worker, who was providing support services to a young mother with a history of drug abuse, violence and sexualised behaviour. The client sexually assaulted the employee and because of that she suffered serious psychiatric illness.
The court found that the organisation had breached its duty of care to its employee. The reasons for finding a breach of duty involved that the organisation was aware that other employees had ceased working with this particular client, as they felt unsafe due to her sexualised and violent behaviour and threats.
The court considered that the risk of the client assaulting an employee was foreseeable to the organisation and given the potentially serious consequences of the foreseeable risk of harm to its employees eventuating, the organisation should have taken steps to protect its employee from harm such as declining to continue offering services to this particular client.
The Supreme Court awarded the applicant $1,508,639.35 in damages, made up of $251,000 for past economic loss and $711,600 for future economic loss, together with special damages to cover the cost of treatment of the psychiatric injury.
Generally, a person or organisation will only be held liable for the damage caused to another person if they were under a duty to prevent such injury or loss from occurring, if they had a ‘duty of care’. An organisation cannot be found negligent unless someone has suffered some type of damage recognised by the law as giving rise to a cause of action – if no legally recognised damage is suffered, there will be no negligence, even if the organisation has not conducted itself appropriately. The most common categories of damage in negligence are personal injury, property damage and financial loss, and its failure to take reasonable care has caused the damage complained of. Notably, the person who has suffered damage carries the burden of establishing that the negligence caused their damage.
In summary, your organisation should ask itself the following questions:
- Does your organisation owe a duty of care?
- Has your organisation breached its duty of care?
- Did a person to which the duty is owed suffer legally recognised damage?
- Did the breach of duty cause the damage? If yes, has your organisation contacted its insurer?