Matters in the Media

$239,000 After a Workplace Sexual Assault

Gilmour v Blue Care [2024] QDC 189

A care worker was sexually assaulted at work by a non-client resident at a hostel. The court found her employer, Blue Care, had failed its duty of care in three distinct ways. Here's what happened and why it matters.

Your employer has a legal duty to provide a safe system of work. When they fail to do that, they can be held responsible for what happens to you, even when the harm comes from someone else entirely.

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$239,000

Total damages awarded

Separate breaches found against the employer

Contributory negligence found against the worker

The Case

Gilmour v Blue Care
[2024] QDC 189

The plaintiff was a Blue Care employee providing care to a client at a hostel in Ipswich. The hostel housed mainly men with mental health or addiction issues. The communal layout meant staff regularly encountered residents who were not their assigned clients.

While caring for her client, a non-client resident asked her to help him make his bed. She went to assist him. He sexually assaulted her, and she developed PTSD as a result.

Blue Care argued the risk wasn't foreseeable because there had been no prior incidents of sexual assault at the facility, and that the employee had been directed not to enter non-client rooms. The court rejected both arguments.

Read the full judgment on Queensland Courts

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What the Court Decided

The District Court found in favour of the worker. It held that Blue Care had focused too narrowly on whether this specific type of assault had happened before, when the real question was whether assault by a resident was foreseeable given the nature of the facility and its population.

The court found that it was foreseeable that workers would be at risk of assault in an environment where mostly male residents with mental health and addiction issues were housed, where staff regularly moved through communal areas, and where no adequate measures had been put in place to manage that risk.

The court also rejected Blue Care's claim that the worker was contributorily negligent. It said that someone who helps a person in need because they care about their work is not acting negligently. At most, it was inadvertent.

Three breaches the court found against Blue Care

The court identified three specific ways Blue Care failed to provide a safe system of work for its employees.

Failure to conduct a site-specific risk assessment

Blue Care had not assessed the Ipswich hostel as a distinct work environment. A proper risk assessment would have identified that most residents were men with mental health and chronic addiction problems, that carers were required to move through communal areas, and that these factors created a foreseeable risk of assault. Without that assessment, the risk was never managed.

Failure to provide adequate training about the specific risks

The employee had received general conflict and physical violence training focused on working with clients in the community. But she received no training about the risk of sexual violence, and no guidance about how to manage interactions with people experiencing mental illness or chronic addiction. Training must match the actual risks of the actual environment.

Failure to require workers to work in pairs or not attend at all

Given the particular difficulties the residents of this hostel experienced, the court found Blue Care should have sent two workers together when attending the facility, or reconsidered whether attendance was appropriate at all. There was evidence that such an arrangement was operationally feasible. Blue Care simply hadn't implemented it.

The legal principles that decided this case

These are the core principles courts apply when an employee is harmed at work through the actions of a third party.

Employers owe workers a duty of care

Your employer must take reasonable care to protect you against significant and reasonably foreseeable risks of harm. This duty applies to the system of work they ask you to follow, the environment they send you into, and the training they provide before you go.

That duty can extend to criminal acts by third parties

An employer's duty is not limited to harms caused directly by the employer. If the work environment creates a foreseeable risk that a third party will harm you, the employer can be responsible for failing to manage that risk, even when the harm itself is caused by someone else entirely.

Foreseeability is about circumstances, not specific incidents

Courts don't ask whether this exact type of harm had occurred before. They ask whether the nature of the circumstances made some kind of harm foreseeable. Blue Care couldn't hide behind the absence of prior incidents. The conditions that made assault foreseeable were present from day one.

Helping someone does not make you negligent

The court's rejection of contributory negligence here is important. An employee who acts with compassion and care, helping someone because they want to do their job well, cannot be found negligent simply because that help created an opportunity for harm. The fault lies with the party who failed to prevent the risk.

Alex's Take

An assault doesn't have to have happened before for it to be reasonably foreseeable. If the circumstances that make one possible are present and obvious, that's enough. A reasonable employer in the position of Blue Care ought to have appreciated that sending a 27 year old female care worker into an all male, 57-resident hostel, carried a foreseeable risk of assault.

What I find particularly important about this decision is the contributory negligence question. The court's reasoning was elegant: someone who helps a disadvantaged person because they care about their work is not negligent. At most, it was inadvertent. Employers cannot hide behind the compassion of their employees to escape their own failures.

If you work in healthcare, aged care, disability support, or anywhere you're regularly in contact with people experiencing mental illness or complex needs, your employer owes you more than generic conflict training. This case spells out what "more" actually looks like.

Alex Bassingthwaighte

Founder & Principal, Claimwise

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