October 28, 2022

A worker who is harmed a consequence of their employment but at a place totally unconnected with it can often recover compensation for the resulting injury.

That was the contention of Tracey Bell – a family violence outreach worker – who was attacked in March 2013 by the partner of a client to whom she was providing counselling as she was getting out of her car to visit her GP.

Tracey had started with Nexus Primary Health at Broadford in central Victoria in 2008 as a receptionist and then in community development and bushfire case management.
Her role of family violence outreach worker to which she was appointed in 2010 required home visits to clients – mostly referred by Victoria Police -and to provide support at other locations including at the local court.

Tracey suffered severe distress from the vicious assault and the perpetrator’s warning: “You stay away from my wife. Don’t contact her again or I’ll fucking kill you”.

That incident was followed by her receipt of a threatening letter in May and a foreboding “Christmas box” in December 2013 – most likely both from the original assailant – that caused a great deal of distress.

A fourth incident – a brick thrown through the window of her home – occurred in early January 2014.

She and her family moved from Broadford (population 4,076) in September 2014 as she ‘didn’t feel safe’ and could not stay at home by herself during the day.

The episodes produced severe psychiatric symptoms, several inpatient admissions, several courses of electroconvulsive therapy and two admissions to a specialist PTSD program at The Austin Hospital.

Although Peter Wales – the husband of Tracey’s patient Diane Wales – was a suspect, police could not identify the assailant.

Proceedings were commenced against her employer in 2019 alleging it ought to have removed her from the Wales given his known propensity for violence and the threats he had made against Tracey.

Nexus ultimately accepted that her severe psychiatric symptoms rendered her unable to work and had “destroyed her life”.

It denied though that it owed any duty any duty to mitigate against the “risk posed by the criminal offending of an unknown person” and did not concede that Peter Wales was indeed the perpetrator.

The dispute came before Justice Stephen O’Meara in the Supreme Court in Melbourne in September 2022.

He accepted Tracey’s account of all incidents and was “comfortably satisfied on the balance of probabilities”, that Wales had perpetrated the March 2013 assault.

Tracey contended in relation to liability that in designing and enforcing a safe system of work, Nexus had a duty to take into account the potential risks to the safety of its employees and to anticipate safety risks posed by their work.

The judge agreed noting that whether or not such duty extended beyond the employer’s workplace depended on the nature and immediacy of the risk; the extent to which it could be addressed; the employer’s knowledge and the employee’s vulnerability.

The employer was certainly aware of the risk.

In Justice O’Meara’s view, there was “no doubt that the work of a family violence outreach worker in the Broadford district in 2010 to 2013 carried a risk that an angry and dissatisfied husband, partner or family member might physically assault a worker”.

The risk was “present, palpable and quite real”.

Indeed, not long before the assault, staff were cautioned after a worker was attacked in the staff car park after being mistaken for a family violence outreach worker to ‘be vigilant and keep your eyes open’.

Regular monitoring of outreach workers and their ‘files’ – as provided for Nexus’s system of work – as well as intervention by the coordinator to alter her file allocation ‘if required’ was wanting.

Tracey had reported to the Nexus CEO threats to her life conveyed by Diane Wales that were said to have been made by her husband while he was raping her in October 2011.

She had also reported the need for a police escort to be protected from Mr Wales aggression when entering and leaving the local Court.

“The whole team’ had been aware of the problematic case that I had with Mr Wales,” she swore.

Despite these reports no one had taken the threat seriously, preferring instead to laugh him off as simply “a pest”.

The court was satisfied on the basis of that evidence that employer had breached its duty of care by failing to enforce the system of work it had designed.

But even in the face of that finding, Nexus contended it should not be liable because even if Tracey had been taken off the ‘file’, it was a matter of speculation as to whether or not the assault would have occurred in any event.

Not so said the court.

Had the support role to Diane Wales been reallocated to another person, “it is more likely than not that the incident would have been avoided” and the plaintiff’s injury loss and damage would not have occurred.

Tracey’s victory was complete. General damages were assessed at $375; past loss of income at $496k; future loss of income at $468k, making a total award of $1.245 million.

Bell, Tracey Lee v Nexus Primary Health [2022] VSC 605 O’Meara J, 13 October 2022

Categories: First Responders

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