Can an Employer be responsible for an Employees psychological injuries suffered in an out of hours assault by a client?

Yes. 

In Bell v Nexus Primary Health, the Employer was held liable for its Employee’s sustained psychological injury and ordered to pay $1.24M in damages after the Employee (a family outreach worker) was attacked by the husband of a previously assessed high risk client while on the way to work. This attack occurred when she was exiting her car outside her doctor’s office which resulted in the Employee suffering from PTSD and rendering her unable to work. The Employee was also subjected to further threats and even had bricks thrown through her house window.

Employer ought to have known the risks and acted early

The Employer argued that it was not liable for the employee’s injuries as it could not have known who the perpetrator was. This ‘defence’ was shut down by the Victorian Supreme Court as it found that such safety risks were “beyond merely foreseeable” especially in this line of work. Given the occurrence of previous similar incidents, the Employer ought to have known the risks and taken more steps to mitigate them.

The Court found the Employer failed to reasonably act when there were reports of threats by the client’s husband.

What can we learn from this?

The Employer’s duty to ensure the safety of its employee is not restricted to the workplace and during work hours. It extends beyond this so long as there is a connection between the event and the employment.

This is consistent with the Federal Government’s recent statement of commitment to ratify the International Labour Organisation’s Convention 190 to give the “world of work” (where workplace assault and harassment can occur) a broader definition to include public and private places of work including where the employee travel to and from work.

Recommendations

Early detection is key to eliminating/ mitigating the risks.

To do this, we recommend that Employers first conduct a comprehensive and thorough review of their operations including considering the specific duties of their Employees (particularly in high risk areas) to identify the WHS risks.

This includes:

• regularly visiting and attending worksites to observe how duties are carried out and assess what might go wrong;

• regularly consulting (both one on one and group/ team meetings) with Employees about concerns with health and safety problems and encouraging them to always flag near-misses/ potential risks areas;

• conducting surveys (1 to 2 times annually) to uncover information;

• analysing past reports/ incidents and understanding the impact on health and well-being including the trend with certain positions; and

• researching hazards/ risks in the particular industry.

Employers should approach this process with an open mind and always play it safe – this means recognising a risk even when the probability is low. Duration, frequency and severity are known risk multipliers.

Once the risks are known, employers must implement control measures to eliminate the risks or if that is not possible, to minimise the risks so far as it is reasonably practicable. Avoid falling into the trap of implementing a ‘one system fit all’ measure. This is unlikely to be effective (given that risks are unique and highly circumstantial) and demonstrates that the business did not take reasonable efforts to address the risk.  Employers should instead have tailored control measures for each specific risk.  

Managing the WHS risks is an ongoing effort which will require businesses to constantly revisit their systems and ensure that it is on the ball with all risks (current and new risks) and have effective measures to address them.

Get a head start now before the full implementation of the new psychosocial Code and Regulations.

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