Brisbane Youth Service Inc v Beven [2017] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION: Brisbane Youth Service Inc v Beven [2017] QCA 211

PARTIES: BRISBANE YOUTH SERVICE INC ABN 83 967 756 338 (appellant) v LINDSEY CALVERT BEVEN (respondent)

FILE NO/S: Appeal No 8547 of 2016 / SC No 6170 of 2014

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2016] QSC 163 (Atkinson J)

DELIVERED ON: 22 September 2017

DELIVERED AT: Brisbane

HEARING DATE: 12 May 2017

JUDGES: Sofronoff P and Gotterson and McMurdo JJA

ORDERS: Appeal dismissed.Appellant to pay the respondent’s costs of the appeal on the standard basis.

CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the appellant is an organisation that provides counselling and other support services to homeless and drug affected young people – where the respondent was hired by the appellant to work as a family support worker – where one of the appellant’s clients was a young woman, T, with a history of making sexual advances towards staff of the appellant – where the respondent was assigned to work with T – where the respondent’s role was to act as an advocate for T and to deliver an educative program to T – where senior staff members of the appellant questioned whether T was an appropriate client – where T eventually indecently touched the respondent at a meeting at government offices that had been organised by the appellant – where the respondent developed a major depressive disorder as a result of the assault – where the respondent had a pre-existing vulnerability due to childhood sexual abuse and this increased the severity of her impairment – whether the risk of harm to the respondent was reasonably foreseeable / EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – VOLUNTARY ASSUMPTION OF RISK – where the respondent was aware of T’s behavioural history but agreed to work with T – whether the respondent accepted the risk of suffering an injury of the kind she suffered – whether the risk of this kind of injury is inherent in the nature of social work / EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – INJURY OCCURRING IN COURSE OF EMPLOYMENT – where the respondent was required to provide support services to homeless and at-risk youth – whether the respondent’s injury resulted from the performance of duties as envisaged by the employment contract / EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – PARTICULAR CASES – PRECAUTIONS TO PREVENT INJURY – where s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides that a person does not breach a duty to take precautions against a risk of injury unless the risk was foreseeable, the risk was not insignificant and a reasonable person would have taken precautions – where T had a history of making sexual advances towards staff of the appellant – where senior staff members of the appellant questioned whether T was an appropriate client for the appellant – whether the risk of injury to the respondent was not insignificant – whether the appellant should have taken precautions – whether it would have been reasonable for the appellant to have taken precautions by discontinuing its provision of services to T / Child Protection Act 1999 (Qld) / Employers’ Liability Act 1880 (43 & 44 Vict c 42) (UK) / Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305D / Beven v Brisbane Youth Service Inc [2016] QSC 163, affirmed / Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33, cited / Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, distinguished / New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, applied / Perkovic v McDonnell Industries Pty Ltd (1987) 45 SASR 544, applied / Rands v McNeil [1955] 1 QB 253, applied / Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34, applied / Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, applied / Thomas v Quartermaine (1887) 18 QBD 685, distinguished / Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, applied / Yarmouth v France (1887) 19 QBD 653, distinguished

COUNSEL: R J Douglas QC, with R Morton, for the appellant / S C Williams QC, with J P Kimmins, for the respondent

SOLICITORS: McInnes Wilson for the appellant / Maurice Blackburn for the respondent

SOFRONOFF P: A young Aboriginal woman, referred to at the trial as “T”, came to the attention of authorities in August 2008. T was born on 24 December 1990. She had been the subject of a Child Protection Order under s 59 of the Child Protection Act 1999. T was a methamphetamine user and she was pregnant. While she was still subject to the Child Protection order, child safety officers found her unconscious in her home, affected by drugs, with her infant daughter in a pram nearby with a blanket over her head. Her daughter was placed in care. T came of age in December of the same year.

T and her daughter became the subject of investigation by child safety officials in order to determine how best to ensure the welfare and safety of both the mother and her child. Although it was not a matter explored in detail at the trial or on appeal, it is relevant to observe that the taking of T’s children into care was effected under the Child Protection Act 1999*.* Section 14 authorises the chief executive to cause an authorised officer to investigate allegations of harm or risk of harm to children who are reasonably suspected of needing protection.

Section 51C of the Act obliges the Chief Executive to prepare a case plan for a child in need of protection. Section 51H obliges the Chief Executive to convene a “family group meeting” to develop a plan and this family group meeting is to review such a plan once it has been made and implemented. Pursuant to s 51L the child’s parents are entitled to attend such meetings as are persons who “give help or support to the child or parent”. The statutory examples given include a “youth worker” and “a legal representative”. A “relevant service provider” may attend all such meetings.

A report about T by the Department was admitted as evidence at the trial. The report said that T had “a history of violence, self-harm, suicide attempts, instability and sexualised behaviours”. Having regard to the imperatives expressed in the Child Protection Act, the Department’s officers determined that the primary goal of their efforts would be to “develop and strengthen [T’s daughter’s] family functioning to ensure she remains safely in the care of her mother, and to provide ongoing support to the family to ensure a successful outcome”. Three “parent’s needs” were identified. These were alcohol and drug use, parenting skills and household resources and basic care.

In respect of “parental substance abuse”, they decided upon a target as follows:

“T to demonstrate an ability to appropriately manage her substance use.

How will we know it is different?

T will demonstrate and provide evidence of the following:

that she is managing her substance use and a reduction of her use will be observed through her engagement with services and monitoring through urine screenings;

that she is consistently ensuring drug/alcohol use does not impact on her ability to provide appropriate care to her child;

that she will ensure budgeting for household resources is always prioritised over alcohol or drugs;

that she will attend and undertake a drug and alcohol counselling/program and consistently comply with attendance requirements and engage positively;

it will be observed that T will begin to develop the ability to articulate insight into her own drug/alcohol use, triggers to use, the cycle of use and the detrimental effects of parental drug and alcohol use on children; and

will report feeling confident in her ability to manage their substance/alcohol use.”

ACTIONS (What has to be done?) Include frequency Who will do it? Date to be completed or reviewed?

T has self referred to Brisbane Youth Service (BYS) drug and alcohol rehabilitation program. Save the Children has assisted T in referral process. T and Save the Children 28/10/2009

T to undertake random regular urine drug testing. T must undertake the urine test within twenty four [24] hours of being requested to do so by CSO, and is to comply with all necessary guidelines for urine testing. T, CSO 28/10/2009

CSO is to arrange for random urine testing, provide relevant forms and to notify parent of the required test dates. The Department are to receive the results. CSO 28/10/2009

CSO to submit CRC memo requesting funding support and approval to cover fees associated with screenings. CSO 28/10/2009

In respect of “parental counselling”, the following was resolved as the aim of the Department’s intervention:

“[T’s daughter] has a parent who is able to provide her appropriate care, supervision and protection. T has reported during the FGM that she has engaged with Logan Adult Mental Health 3-4 times.

T will be refer to other Mental Health Service located on the North side of Brisbane as it may be extremely difficult for T to comply with this requirement in advanced state of pregnancy and [T’s daughter] in her care

T has self refer to BYS in general counselling.

How will we know it is different?

T will demonstrate her ability to recognise and respond to [T’s daughter]’s needs (physical, medical, developmental, emotional), by developing and implementing a consistent routine for [T’s daughter] when [T’s daughter] is in her care, and by placing appropriate and consistent limits and boundary in place and implementing appropriate and consistent disciplining strategies.

T will develop appropriate coping mechanisms in place and demonstrating ability to deal with adversity, crises, and long-term problem in a constructive manner.

ACTIONS (What has to be done?) Include frequency Who will do it? Date to be completed or reviewed

T is to engage with an appropriate service and secure counselling to address the impact of multiple boundary violations, poor attachment and ongoing childhood sexual abuse. T has self referred to BYS and Save the Children has assisted T in the referral process. T, Save the Children 28/10/2009

Save the Children to assist T in providing support to T T, Save the Children 28/10/2009

Save the Children has referred T to Red Cross to get additional support. T, Save the Children 28/10/2009”

In respect of “Parenting Skills”, the resolution was as follows:

“PARENTING SKILLS and ACCOMMODATION

**[**T’s daughter] has a parent who is able to provide her appropriate care, supervision and protection.

**[**T’s daughter] has a parent who meets her emotional and behavioural need through knowledge of [T’s daughter]’s developmental level and effective parenting strategies.

[T’s daughter] has a parent who consistently provides her safe and stable housing, hygienic home environment, nutritional food, clothing and meets [T’s daughter]’s basic care needs.

T has recently found a house through Department of Housing in Gaythorne.

How will we know it is different?

T will be demonstrating ability to recognise and respond to [T’s daughter]’s needs (physical, medical, developmental, emotional).

T developing and implementing a consistent routine for [T’s daughter].

T placing appropriate and consistent limits and boundaries in place and implementing appropriate and consistent disciplining strategies.

T having appropriate coping mechanisms in place and demonstrating ability to deal with adversity, crises, and long-term problem in a constructive manner.

T will manage her financial and household resource effectively to enable them to provide for [T’s daughter]’s basic care needs.

Home environment consistently observed to be hygienic, safe and tidy.

ACTIONS (What has to be done?) Include frequency Who will do it? Date to be completed or reviewed

T has referred herself to BYS in a parenting program. T 28/10/2009

CSO to support T in ensuring her home is child safe. Save the Children to assist T in ensuring the house is child friendly and child safe. CSO and Department, Save the Children and T 28/10/2009

T is to maintain the household at an organised, safe, hygienic and functional level. T 28/10/2009

CSO and the department will monitor and supervise the home environment through scheduled and unscheduled home visits CSO and Department 28/10/2009”

T’s daughter’s immediate fate, however, was that she was immediately returned to the care of her mother.

On 14 May 2009, the Department referred T to the appellant’s “Drug Team”. The referral document identified that the reason for the referral was T’s “previous/current [drug use] compromising the long term care of her child”. Her identified “needs” were said to be “use of speed” (which was written next to a downward pointing arrow signifying a decrease of use), “safe using when [T’s daughter] is not in her care” and “pregnancy effect on unborn”. At the time of referral, T was pregnant with the birth due in July.

On 6 November 2009, an officer of Child Safety Services informed Ms Laura Christie, an employee of the appellant, about the following matters:

“● Concerns T’s mental health has been deteriorating over a period of months and she is regularly self-harming by cutting herself. They are aware that the children are in the home when the mother is self-harming.

Concerns T is substance misusing and is using ice and speed about twice a week. When T is withdrawing she is observed to be more irritable, disengaged and depressed in her responses to the children. As she is less affectionate at these time with [T’s daughter], the child has been seen to become upset at times when the mother does not respond to her.

Track marks have been observed on mother’s arms.

Notifier stated it is unknown where mother is getting the drugs and or how safe the [T’s daughter] is in mother’s care given she is using drugs intravenously and depressed.

…

The mother admitted that she had been using hard substances (such as heroin, cocaine and speed) in recent weeks and that she uses 2-3 times a fortnight.

…

They are concerned that the mother can become quite volatile when confronted and if she has been using ice that she may be quite violent.

…

Through direct observations from CSO, CSSO, Carer, T, service providers and support, the following will be assessed;

[Her son] will have regular positive contact with his mother.

[T’s daughter] and T will build an appropriate bond and have a positive relationship.

Contact will increase with positive reports.

Supervise will have positive reports from contact.

…

OUTCOME (What has to be different?)

Alcohol and Drug

T to remain drug and alcohol free. T to have an understanding how her drug/alcohol use impacts her parenting of [her children].

T to have a drug and alcohol plan established with BYS.

T to engage with Quinn or another appropriate service for drug and alcohol counselling.

…

OUTCOME (What has to be different?)

Mental and Emotional Health

T to maintain emotional and mental health wellness and stability. T to demonstrate her ability to manage her emotional responses with in her family environment so that the children are safely parented and free from emotional harm.

T has a history of self harming as a child in care. T appears to self harm without intentional suicide as a way of managing stress and pain and has expressed it is better she harms herself than her children. T is very immature in her emotional reasoning and forms immature relationships with people.

T to engage with Brisbane Youth Service (BYS) to establish a mental health plan. The doctor at BYS have referred T to a psychologist for ongoing personal counselling.

…

OUTCOME (What has to be different?)

Parenting

T to develop a positive relationship with her children to enhance their relationship and demonstrate parenting strategies that will enable her to understand and meet her children’s needs. T will provide a safe environment for her children.

T has difficulty in parenting [T’s daughter] and managing her behaviours and that of a busy, wilful, and demanding toddler. T has difficulty in coping with the demands of [her children] and as a young sole parent with limited resources and family support to help her she does find it difficult. T has used amphetamines to assist her when she is stressed and self harms in this manner she does not act protectively of the children.

How will we know it is different?

Through direct observations from CSO, T, BYS, Susie, Georgia and parenting group, the following will be assess;

There will be no further notification in relation to T’s parenting of [her children].

T will engage in a parenting program.

T will demonstrate positive coping strategies.

T will develop and implement positive parenting strategies.

T will provide a safe environment for [her children].

T will engage in Triple P Parenting Program.

T to establish a routine and boundaries in their home and implement it.”

The appellant describes itself as a provider of support services to homeless and at-risk young parents and their children. The services were intended by the appellant to move such parents “from a position of vulnerability and isolation towards community and personal strength”.

The position that the respondent came to occupy as an employee of the appellant was described in a document that advertised that position. Relevantly, it stated:

“KEY RESPONSIBILITIES:

The Family Support Worker has the following key responsibilities:

1. Planned, On-going Parent/Family Support

－ Provide planned support to pregnant and parenting young people. That is, within a plan for the individual that has clearly articulated goals, which have been developed collaboratively with the young parent/s.

－Provide counselling, information, support and advocacy, focussing on issues of housing, safety, harm reduction, and amplifying strengths to provide opportunities for greater self-control and inter-dependence in the community.

－Provide appropriate support to access emergency assistance, accommodation, housing, legal assistance, mental health, employment, education, training, social and other activities that promote growth and development.

－Maintain client files and records, including computer records and daily entries of all activities with clients.

－Participate in relevant networks, interagency meetings, reference groups, peak bodies and lobby groups.

2. Team Work and Organisational Tasks

－Provide general support to colleagues and team members.

－Meet regularly with the Program Manager and raise all work/performance concerns in a timely manner.

－Participate in staff, supervision, debriefing, case planning and other meetings as required.

－Arrange external supervision and identify and address ongoing professional needs by attending relevant training and skill development opportunities.

－Participate in team planning and performance appraisal.

－Participate in the organisation’s strategic planning process.

3. Rostered Centre-based Duties

－Participate on the weekly roster that manages the Drop-In Centre at BYS.

－Respond to requests for assistance such as income, accommodation, emergency relief, food, clothing, showers, laundry and court representation especially in relation to young families who present.

－Crisis intervention and risk assessment to keep people safe during and following incidents in the drop-in centre involving overdose, self-harm, threatening behaviour and violence.”

The same document stated the criteria that would be applied in selecting a person to fill the advertised position:

“SELECTION CRITERIA:

IMPORTANT! Please note: Selection for an interview is based on your response to the selection criteria below.

SC1: A demonstrated understanding of the issues facing young homeless or at risk parents and young pregnant women and the ability to clearly articulate a practice framework for working effectively with the target group.

SC2: A demonstrated capacity to provide planned support to homeless and at risk young parents so that they may live independently, improve their well being, engage community support, increase their participation in activities and achieve greater self-reliance.

SC3: Knowledge of or the ability to acquire knowledge of Child Protection Legislation, the Child Protection System and contemporary approaches to supporting young parents to protect their children from harm.

SC4: A thorough knowledge of community resources specifically for young parents and the ability to work with other community agencies and statutory bodies when appropriate.

SC5: A high level of written and interpersonal skills including the documentation of work, and the ability to work as an effective member of a multi-disciplinary team.

SC6: A proven ability to work without direct supervision, exercising a high degree of initiative, judgement and decision making within the broad parameters of the organisation.

Required:

᠆ Relevant experience and/or a degree in Social Work, Psychology, or the Social Sciences with specific training in family support interventions.

᠆ Experience working with homeless or at risk young parents.

᠆ A commitment to harm reduction and social justice.

᠆ Current drivers license.”

A further description of the services provided by the appellant was contained in a document that became part of the respondent’s contract of employment:

“BYS Current Services

BYS offers a holistic range of services that move from immediate needs through to planned support (refer Model of Service Delivery). The current range of services provided includes:

Drop in services including access to:

showers, laundry, food, mail, storage of belongings, computers and phones

Program of activities for participation.Specialist youth medical clinic including a doctor and nurseAccess to drug intervention workers for intervention, education and support.Needle and Syringe Exchange programAccess to emergency assistance for housing and faresOn-site assistance from Centrelink with income supportOn-site Mental Health Outreach ClinicLegal and Court Support including weekly clinic at the Diversion Court Street/park based Outreach servicesActivities, arts and life-skills programs (www.brisbii.com)Community cultural development projects and resource developmentTransitional housing optionsHousing support and educationHealth education and promotion activities and interventionA range of Parent support services for young families including intensive support (www. parentsyes.org)Parenting GroupsPeer education programsSupport for promoting young peoples access to genuine participation opportunitiesSystemic information, advice, support and advocacy across a range of issues.Case managementIntensive personal support and counselling”

A flow chart set out in more detail how the management of the provision of these services was undertaken. After describing how persons needing support of the kind offered might become clients of the service, the document described three distinct areas within which services could be offered. These were:

CRISIS SUPPORT / (up to 12 contacts p.a.)

BRIEF INTERVENTION / (up to 12 contacts p.a.) / * ACTION LEARNING & STAGES OF CHANGE

Referrals in for / Parents YES / and some Drug / intervention / PLANNED SUPPORT / (more than 12 visits p.a.) / * ACTION LEARNING & STAGES OF CHANGE

Referrals in for / Parents YES / and some Drug / intervention PLANNED SUPPORT / (more than 12 visits p.a.) / * ACTION LEARNING & STAGES OF CHANGE

N.B. A person can be in receipt of services at more than one level at any point in time

A chart that described the reporting structure described the complement of three “teams” that each provide distinct services. These teams were:

Health Team / Drug Intervention Worker x 2 / Nurse (30 hrs) / Dr’s (p/t) / Arts Health Educator (f/t) / Youth Health Engagement Worker (p/t) / Complimentary Therapies Project Worker (p/t)

Young Families Team / Young Families Housing Worker (.5) / Family Support Worker (f/t) / Parents YES Program / Young families Team / Coordinator/Family Support Worker (f/t) / Family Support Worker (f/t hrs) / Family Support Worker (22 hrs) / Community Linking Worker (30 hrs)

Homelessness/Housing Team / Coordinator (f/t) / ↕ / Casual Staff Pool (approx 3 workers) / Youth Development/Activities Worker (f/t) / Indigenous Youth Development (p/t)

According to the evidence of Ms Andrea Edwards, an “intensive support social worker” employed by the appellant at the relevant time, the appellant attracted the more “complex type of young people” as clients. These included victims of sexual abuse and “some of the most traumatised young people out there”.

Ms Susie Turner was the first employee of the appellant to meet T. She was described as a “Supported Accommodation Assistance Program” worker. What this actually meant was not explained in evidence and Ms Turner was not a witness at the trial. She made notes of her first meeting with T on 11 May 2009. All further meetings between T and employees of the appellant were also recorded in a case file that was tendered as an exhibit. Ms Turner noted that at the first meeting T had informed her that the issues that T wanted to address were “Mental Health (Dep and Anx – PTSD), Drug Use (Speed), Sexual Abuse (Father incarcerated for this – due to be released Sept), Attachment”. About a week later, Ms Turner informed T that the appellant proposed to provide a “drug intervention worker”. Ms Turner began to visit T regularly, to discuss T’s problems with her - from lack of housekeeping skills to drug use - and in order to apply some structured tactics to deal with these problems. Ms Turner would transport T to appointments with a midwife and to do grocery shopping. T read poetry she had written. Together they arranged the delivery of a cot for the baby that would soon be born.

T began to confide in Ms Turner about the sexual abuse that she had suffered in the past and about her life in and out of foster care. In the case file Ms Turner noted that many conversations that she had with T were “very sexualised”.

At the same time, T began to receive services from Ms Laura Christie who was described in the case notes as representing “National Illicit Drug Strategy”. Presumably, she was the “drug intervention worker” that Ms Turner had foreshadowed would be provided. Ms Christie’s first contact with T was by phone. She informed T that she would visit her and together they would discuss what the appellant could offer in the way of support “around her drug use”. They met soon afterwards and T informed Ms Christie that she had not used drugs since her daughter had been returned to her care but that her long term goal was not to cease using drugs but to moderate her use.

Ms Turner visited T every few days. Ms Christie visited her a little less frequently. According to the case notes, as the birth of T’s baby approached, and after her son was born in July 2009, T had episodes of depression, anxiety, inability to cope with child care and temptation to self-harm, which in her case involved cutting herself.

Throughout the second half of 2009, the main concerns that were recorded as confronting Ms Turner, in her role of offering the “Supported Accommodation Assistance Program” and Ms Christie, in relation to addressing the issues arising from T’s use of drugs, were T’s mental state, her desire to use drugs as a way of alleviating her mental agony, her inability to care for her two children and her occasional expressions of desire to buy sharp knives which she wanted to use to cut herself.

In addition, in August 2009 Ms Turner noted that T had been making frequent attempts to “make physical contact” with her and that she had had to ask her “not to touch me”. T had become angry. There was no evidence led that T had actually touched Ms Turner in a sexual way at this point. A few days later, during a visit with T to her psychiatrist, Ms Turner, with T’s consent, related to the psychiatrist the difficulties that T was experiencing with “sexual boundaries”.

On 28 August 2009 Ms Turner noted that T “has been messaging me with confused feelings about our working relationship. I have been very clear and straight forward about boundaries and that our relationship is a working relationship”. A week later, during a visit to T’s home on 4 September, and while Ms Turner was attempting to “reinforce boundaries with her and my role as having a working/professional relationship with her”, T began to cut herself with a Stanley knife. Ms Turner noted that T said “a couple of concerning things that have made me feel unsafe and concerned for the children”.

On 8 September 2009, Ms Turner noted on the case file that “During the time I was at T’s I should document that she had written threats towards my safety in her home. Deb was also able to read this. T later reported that this was not true and she onlt [sic] wrote it because she was angry! I have informed T that such comments and threats are not ok and that I cannot ignore them. I will no longer be proving [sic] intensive support in T’s home. I wil [sic] discuss a new model with her in the future”. Informed of this decision on the same day, T reacted in Ms Turner’s presence with anger, “[slamming] her blade on the table”.

On the same day, according to a case note made by Ms Turner, “Team decision made to notify DoChs due to [T’s] increasing drug use, mental health and selfharming behaviours … Team discussed ceasing support however Ange (Manager) and I decided to offer limited support to [T] in the event that she wishes to take me up on it”. Ms Turner and another employee, Ms Debra Driscoll, attended at T’s home to inform her of the notification having been made.

On 11 September, Ms Turner, with three other workers, attended at T’s house so that Ms Turner could introduce T’s new Supported Accommodation Assistance Program deliverer. Ms Turner noted that she discussed with T “changes to the way we work together due to the threats to my safety”. According to the notes, T “ended up in her room potentially self harming and yelling at workers”. The interview was terminated. On the following Monday, T’s daughter and son were removed from her care and placed in care of the Department.

Ms Christie continued to visit T at her home and to take her to various appointments and, for her part, Ms Turner remained willing to consult with T but only at the offices of the appellant.

On 5 October 2009, Ms Turner noted that T had sent text messages to her “outlining that she wished to commence an inappropriate relationship and was having feelings for me”. T also sent her a message that Ms Turner said was “pornographic”. Ms Turner noted that she had told T that such messages were not acceptable.

Ms Turner was a psychologist. On the same day, 5 October, she discussed with T commencing psychological therapy with T instead of continuing their previous form of interaction. On 15 October 2009 T and Ms Turner began to meet alone together so that T could engage in “counselling with Susie [Ms Turner] in a psychology practice setting to work on her own stuff as opposed to parenting issues”.

T now began to make sexual comments to Ms Christie as Ms Christie noted on 11 November 2009. T’s drug use and acute depressive episodes and attempts at self-harm continued. Her sexual text messages to Ms Turner also continued. In a phone call on 1 December, T told Ms Turner that she had been prostituting herself to pay for drugs and that she had been stalking somebody.

T’s condition worsened or, at least, it did not improve. During December, she sent text messages to Ms Turner threatening self-harm and, during a home visit by Ms Christie on 8 December 2009, T spoke about wanting to do “bad things” and wanting to “stalk, rape and drug”. She had blades nearby her as she said this, as well as pornographic material.

As to these matters, Ms Christie said in oral evidence:

“And again, due to knowledge of her sort of diagnosis, this is something that I wouldn’t go too far into with T. That wasn’t something that I had the skills to talk around with a young woman with the complexity of her mental health. So I would have talked around that with her at the time, because part of this exercise is around listening to what the young person’s responses are, and in their own words, writing exactly what they tell you. It’s a motivational interviewing technique. So we don’t focus on the negatives. We’re looking at the positives in this activity.”

T informed her that she had followed Ms Christie to some destination and had seen her out walking and had seen the number plates on her car. Ms Christie said:

“I called her on it, and I said, I don’t believe you; I don’t believe that to be true. And I questioned her on it and she said it’s not true. She said it was something that she would fantasise around, but it was something that she wouldn’t act on. It was something that we kind of had spoken about on and off, because it was a theme for T that would come up, this theme of stalking.”

She added the following:

“It was something that came up in her – in – so, of course, we would address it at the time, but I didn’t give it too much weight, because it wasn’t what I wanted to focus on with her. We’re a strength-based organisation. I’m not going to focus on these negatives.”

Ms Christie informed her superior, Angela Barnes, about these matters.

On 23 December, T showed Ms Christie a suicide note she had written as well as a poem she had written about how Ms Turner had “hurt her”. On 5 January 2010, T told Ms Christie that she wanted to “stalk workers”, evidently referring to the appellant’s employees and officers of the Department, and her desire to “[hire] a PI”. Her affect was confused. On 7 January 2010 she confided in Ms Christie her fears that she, T, might sexually abuse her own children. On 19 January, in a fit of irrational anger, she called Ms Christie “a slut and hoar [sic]” and “spoke again about stalking and again mentioned that she had Susie and myself followed one day”.

On 5 February 2010, after learning that an order had been made to take her children into care for two years, Ms Christie noted that T “was not doing well”. She produced a suicide note and had a knife behind her back. Ms Christie called an ambulance and T was admitted to hospital.

After T’s discharge from hospital, Ms Christie continued to visit her and to take her to appointments and grocery shopping. T was agitated at times when she had not been using methamphetamine. By April, she was using drugs again and exhibiting depressive behaviour and threatening to self-harm. In May, Ms Christie discussed with T the possibility of admitting her to a rehabilitation clinic and what that experience might be like. At a meeting at T’s home five days later, T told Ms Christie about “inappropriate dreams she had had about” Ms Christie while at the same time running a pair of scissors along her own neck and then stabbing them into a table.

On 2 June 2010, Ms Turner and Ms Christie discussed T’s case. Ms Turner spoke about “the severity and complexities of T’s mental health issues and from her perspective noted a number of overlapping conditions ie BPD, PTSD, depression, anxiety, compulsive behaviours”. Ms Turner “suggested getting T to see a psychiatrist to get properly medicated to stabilise her moods”. As a psychologist, Ms Turner could not prescribe medication. Ms Christie made attempts to secure the services of a psychiatrist. On 20 July, Ms Christie was informed that a psychiatrist would not see T unless T stopped using drugs. This, of course, was not likely, as Ms Christie knew and Ms Christie’s earnest and persistent attempts to place T with a psychiatrist met with no early success and her drug use and volatility continued.

According to the case notes, from July until September 2010, and despite the earnest efforts of Ms Turner and Ms Christie, nothing had changed in T’s condition or circumstances.

As has been said, on 8 September 2009 the appellant had made a decision to “notify” the Department and this notification resulted in the removal of T’s children into the care of the Chief Executive.

As a result, a series of meetings under the aegis of the Department then took place over the course of the next 19 months. Some of these were at the offices of the Department. Others were at the Childrens Court or the Family Court. Initially, Ms Turner or Ms Christie attended such meetings to “support” T.

According to a file note made by Ms Christie, she supported T in this way at the Childrens Court on 3 December 2009. On 18 February 2010 Ms Christie again attended with T at a proceeding the Childrens Court. On that occasion, according to the case note, there was a case conference attended by three Departmental officers, a lawyer acting for T, a friend of T’s, Ms Christie and an unidentified convenor. It was resolved that the order placing T’s children in care would continue for at least another year.

A case review meeting was held at the Department’s offices at Chermside on 29 April 2010. Ms Christie again attended to support T. This involvement by Ms Christie as a support to T in her dealings with the Department continued over the course of 2010.

It was at this point that the respondent entered into the picture.

The appellant had first employed the respondent in 2007. Her curriculum vitae showed that she had earned a degree of Bachelor of Behavioural Science from La Trobe University with a major in Psychology. In 2000 she also earned the degree of Bachelor of Arts from Charles Sturt University with a major in psychology and minors in Law and Sociology. She described her areas of specialty as conflict resolution management, youth homelessness and issues affecting homelessness, depression, suicide prevention, sexual abuse and “strength based social justice framework”.

She described her practical experience since leaving university, relevantly, as follows:

“Jan 2003 – present

Chameleon House

Redcliffe, Queensland

Youth Worker

Working with young people aged 13 – 18 yrs, and their families in a crisis shelter and long term properties

Working with young parenting families in transitional properties – budgeting, parenting advice, engaging in community activities, liaising with DOCS, Dept of Housing, Community Housing, Dept of Education and other significant agencies

Acting coordinator duties

On call duties

Facilitation of networking meetings with various community organizations

Facilitation of Graffiti Art workshop for young people

Working with young people on conditional bail programs through joint programs with YBASS and Youth Justice

Supporting and facilitating young people to gain access to community organizations to assist needs such as homelessness, or at risk of homelessness

Supporting young people who have drug dependence issues

Providing crisis management

Facilitating access to young people to community bodies to gain assistance i.e. medical, financial, educational, job opportunities/training, mental health assistance or counseling [sic].

Dec 1999-Jun 2003

Anglicare TRACC (Tufnell Residential and Community Care) Logan, Queensland Dec

Residential Care Youth Worker/Behavioural Therapist

Care, guidance, role modeling, [sic] and counseling [sic] for youth aged 6 - 12 years effected [sic] by homelessness; multiple placement breakdown, abuse and neglect

Providing young people with a therapeutic and safe living environment

Behavioural modification to equip the young person to reach their full potential

Case management

Implementation of charts, databases, spreadsheets, petty cash management, shift reviews, monthly reviews

Liaison with Dept of Child Safety, Dept of Communities, Dept of Education, Anglicare management and significant others in the young person’s life

Providing Crisis management

Working in a team environment

Mediation and reunification if as per case plan”

This information about the respondent’s practical experience was not explored during the trial.

The respondent’s post-graduate training was as follows:

“QPAST Torture and Trauma Workshop 2007

Post Traumatic Stress Disorder Workshop 2007

Triple P Course 2007

Cultural Workshop 2007

Child Protection 2007

Strength Based Training/Strength in teams 2007

Suicide Prevention Chermside 2006

Senior First Aide Course 2006, 2005, 2004, 2003, 2002, 2001

Strength to Strength Kyabra 2006, 2004

Strategies for Challenging Youth 2003

Physical Restraint Course 2001/2002/2003

Therapeutic Crisis Intervention 2003

Sexual Assault SACS 2002

Caring Crisis Management 2002

Domestic Violence, Effect on Children and Families Logan Women’s Centre 2001

Children, What to do when they come your way? Relationships Aust 2001”

The respondent had suffered cruel and pitiless sexual and violent abuse as a child. She and her family had socialised with the family of her uncle. His son, C, was seventeen when the respondent was five years old. C would babysit the respondent and her young siblings. From when she was five until she was thirteen, the respondent was sexually assaulted by C. He raped her frequently. He threatened to kill her if she complained. He once held her hanging by her feet over the edge of a cliff and told her that he had already killed her parents and buried them. There was evidence at the trial that C’s abuse was known or, at least, suspected, by responsible adults in the respondent’s family who did not act to protect her. Years later, C was found guilty of manslaughter and sentenced to a term of imprisonment. The respondent finally made a complaint to police and C was tried some time later. He was acquitted.

The respondent had also been the victim of abuse as a child at the hands of her paternal grandfather and two other men.

The respondent’s family has never spoken openly about these matters and, according to the respondent, each of her siblings had been the victim of abuse in some way or another.

This awful chain of experiences had its effect upon the respondent. While pursuing her second degree at Charles Sturt University, the respondent was obliged to complete an assignment about sexual abuse and repeated offending by perpetrators of sexual abuse. Her own experiences led her to “decompensate”. She was admitted to Wagga Mental Health Unit where she spent some time after what was referred to as “an attempt at deliberate self-harm”.

The respondent did not reveal any of this history to the appellant.

After leaving Wagga Mental Health Unit, the respondent moved to Brisbane at the suggestion of her sister. Here she met her husband to whom she remained married for over ten years. They have three children.

The respondent continued to undergo counselling for some years and, for a time, took anti-depressant medication. However, from the time she moved to Brisbane and until the event that led to this litigation, the respondent said in evidence, she was coping extremely well, was good at her job and was in a very happy marriage. That evidence was not challenged.

When the respondent began to work for the appellant in 2007 she became a Family Support Worker as part of the Young Families Team. In oral evidence the respondent said that her role was to “support and advocate for young homeless, or at risk of homelessness, young parents”. The form that such support might take, in the case of the appellant’s work, was not much explored at the trial. The significant point, however, is that the work for which the respondent was responsible was distinct from the work done by members of the Health Team, as will appear. The two teams were also based in different premises.

Ms Christie approached the respondent about T for the first time in September 2010. The case file note Ms Christie made read as follows:

“Chat with Lindsey (Family worker) re support for [T]. Lindsey can support [T] during her contact time at Child Safety and assist with Child Safety advocacy as well. Also able to look at attachment and play (YMTD).”

Ms Christie had told her that she herself was not equipped by her own knowledge or expertise to “navigate” the child support system. It was for this reason that the respondent was being asked to become T’s advocate with the Department.

In her evidence, the respondent expressed her awareness of the nature of the client that she had agreed to take on. She had already attended team meetings at which Ms Turner and Ms Christie had described the behaviour of T that had given them each cause of concern. In Ms Turner’s case, this behaviour included statements expressing a desire for a sexual relationship. Ms Turner disclosed the content of letters that T had written to her. The respondent said that these letters were presented at a meeting and their contents were discussed. She herself “didn’t look at them in great detail, but they were discussed”. The respondent witnessed Ms Turner weeping while being comforted by Ms Kaphle after having been the subject of “a particular advance from Miss T, and she had a letter in her hand”. The letter “had made some quite suggestive sexualised advances”. The respondent could remember seeing “some pictures on that letter, I recall some blood”. She said that she had “only glanced at the letter” and that it “made advances, quite sexualised explicit advances towards” Ms Turner.

At a point in time after Ms Turner had ceased making home visits, the respondent recalled seeing T outside the appellant’s premises. She was hiding behind a pole and the respondent thought that she was self-harming. She phoned her colleagues to alert them and police and an ambulance arrived and removed T to a hospital.

Ms Christie had informed her that Jenny Kaighen, Ms Christie’s supervisor, had informed her that “no worker should be working with this client” and that “the young person should not have a case worker due to the worker’s safety”.

The respondent said that she had not read the case file before embarking on her work with T. No criticism of her was made at the trial for this omission.

On 4 October 2010 the respondent made her first contact with the Department to inform the relevant officer of her new role as T’s advocate.

On 14 October 2010 the respondent attended a team meeting. She recalled that Ms Kaphle raised the question whether T was an appropriate client for the appellant having regard to her various intense problems and her history of interaction with Ms Turner. According to the respondent, Ms Kaphle told the meeting that “we needed to be aware of the risks involved with this client”. She also recalled Ms Edwards expressing the view that she did not feel comfortable in working with T and that Ms Kaphle was “quite forthright with her – her concerns regarding working with this client”. Ms Kaphle said that “extreme boundaries” were necessary with this client and “her mental health was a concern, and her drug and alcohol use”.

The respondent said that, notwithstanding these matters and Ms Kaphle’s expressed concerns, there had been a “direction” that this client had to be accommodated. The respondent said that Ms Kaphle had said that this direction had come from Ms Angela Barnes. In evidence Ms Barnes denied giving such a direction. It may be noticed that on 8 September 2009 Ms Barnes had decided to continue the provision of services to T after the issue of T’s suitability had been raised for consideration for the first time. Further, according to the respondent’s evidence, Ms Kaphle said that “we needed to provide support for her children and that we were the Young Families Program. That was our particular forte, and we needed – someone needed to take her on”.

Sometime after the meeting of 14 October 2010, Ms Edwards prepared a note of her recollections of that meeting. It was not a contemporaneous note but the accuracy of its contents was not challenged in cross-examination. Ms Edwards had written:

“I can recall Lindsey [the respondent] discussing the referral and her ideas around working with T including helping her improve the quality of her Child Safety access with the children. Lindsey wanted to accomplish this by engaging T in two programs: You Make the difference Parent/Child interaction program and The Circle of Security Parenting Program. The team leader [Ms Kaphle] disagreed with Lindsey and communicated that T was not an appropriate referral due to her complicated mental health status. The team leader also spoke around the impact T’s mental health would have on her capacity to parent her children or to engage productively parenting interventions.

I remember that Lindsey asserted her thoughts around working with T and specifically that she felt that if BYS did not work with her then “who will”. I recall the team leader became quite firm in the manner she reiterated that the Centre for young Families was not a suitable organisation in terms of meeting the complex needs of T. Lindsey also remained firm in her stance that she should work with T. The matter was not resolved during the meeting and the team leader and Lindsey were going to discuss the matter further outside of the meeting.”

In oral evidence Ms Edwards said:

“Kal was more concerned around taking T on, because of her complex mental health status. So she – and it was more around the type of work that we do is around parenting and supporting contact and access with kids who are in care in the less intensive role. So it wasn’t – it was more can we do good work with her and her children together. So no, Kal wasn’t pushing it. Kal was, in fact, doing the opposite, and saying I don’t think we should be taking this case on, so …”.

Ms Edwards was asked whether Ms Kaphle expressed concern about whether T presented a safety risk to the appellant’s employees. Ms Edwards responded:

“… it was more around can we actually do a good piece of work? Is T in a place where she can do good work with her children and learn parenting skills? Was it an appropriate use of, you know, parenting, work support resources, to work with her, or would another service be more beneficial?”

According to Ms McFadyen, Ms Kaphle was regarded as the team’s supervisor. According to Ms McFadyen, if a final decision had to be made about an issue then Ms Kaphle would make it. However, she said that decisions rarely had to be made in that way; rather, a consensus was usually reached. This also emerges from other oral evidence about those meetings, particularly that of Ms Edwards and the respondent herself.

Ms McFadyen also prepared a written note of the meeting of 14 October 2010, and like Ms Edwards she did so some time later. The contents of the note were not challenged. Ms McFadyen wrote:

“Kal also felt that there were some un-safe [sic] aspects to working with [T] and that we should reconsider working with her. Lindsey then stated that she felt confident to be able to support [T] in advocating child safety and to work with her and her children. There was more conversation about the issues but I cannot recollect exactly what was said, the decision was then made that Lindsey would work with [T].”

In answer to a question in cross-examination, Ms McFadyen agreed that the decision that the respondent would work with T was made by Ms Kaphle.

The respondent’s recollection of the October meeting, which had been the subject of Ms Edward’s record, was largely consistent with that record and, indeed, the substance of what Ms Edwards said was said at the meeting was pleaded by the respondent in her Statement of Claim. Her oral evidence about this meeting was as follows:

“Did Kal say – Miss Kaphle say anything else? --- Kal was very verbal about this particular referral. She did bring up concerns about working with Miss T. She discussed issues with mental health. She discussed the issues with her – drug and alcohol use. It was an open discussion which Kal was quite verbal about in regard to whether this particular client should be taken on or who should be actually taking on this particular client because we had the direction that someone needed to.

Did she say what her concerns were in relation to taking on Miss T? --- Kal said in regards to this – to T’s boundaries – and she referred to the previous case manager – so the – I – she – she addressed concerns in regard to – to working with this young person and the boundaries, and they needed to have strong boundaries.

What do you mean she referred to previous case management? --- She brought up that there was previous situation with Susie Turner and that we needed to be aware of the risks involved with this client.

Do you recall any other – who was at this meeting? --- The – the Young Families Team were at this meeting. There was Bettina McFadyen. There was Andrea Edwards. There was Getano Bann, who was a Young Dads worker, so all these are – sorry – Andrea Edwards, Bettina McFadyen, Renee Valentine – they were all part of the Parents’ YES Program, so they were the intensive support. Then there was the Young Dads’ Program, and then there was the Family Support Program, so this particular client fit within my – my funding.

Do you recall any other member of that meeting saying anything specifically about taking on Ms T? --- Andrea Edwards actually said that she didn’t feel comfortable in working with this particular client.

Anything else? --- It was an open discussion, and Kal was quite forthright with her – her concerns regarding working with this client.

HER HONOUR: What do you mean by that? --- She – your Honour, she was – as I said, she was the natural leader ---

Sure, but what did she say? --- Sorry. She – she said that we needed to have extreme boundaries put in place wrapped around this – this client. She did say that her mental health was a concern, and her drug and alcohol use, but we needed to provide support for her children and that we were the Young Families Program. That was our particular forte, and we needed – someone needed to take her on.

MR KIMMINS: So what was the end decision at the meeting? --- So I said I would take this particular client on. I said that I would provide Circle of Security. We actually discussed that – what options did we have in working with this client, so initially it was we needed to do the court support around this person and the support through Child Safety because her children were taken into care, and there was a further order coming, so she needed support around this, and I – I said that I was – I would take this client on. Of course, she was part of my funding, and I would provide Circle of Security program which is a short sharp 10 week intervention, so it would just be 10 weeks, and I felt comfortable doing that because I wasn’t a [sic] intensive support worker; I provided the program.”

The respondent said that at the October meeting she agreed to “take on” T as a client. She said that T was “part of my funding” and that she would provide a “short sharp 10 week intervention” by way of providing the Circle of Security program. She said that she was “happy to take the client on”. She “did fit into my funding criteria”. She acknowledged that at the meeting she said words to the effect, “If BYS won’t help her then who will?”

Ms Barnes denied that any direction had been communicated that T had to be retained as a client. She said in evidence that it would be unethical to ask somebody to do this work if that person felt a lack of competence to do it. Not only would it be unethical, in her opinion it would also be unprofessional and dangerous. That is undoubtedly a sound opinion.

Notwithstanding the respondent’s evidence that Ms Kaphle had communicated to the team a direction to take T on as a client, the respondent herself did not say, or even suggest, that she had agreed to work with T as a result of such a direction or as a result of any pressure. Nor did she say that she actually felt under any pressure to do so.

If it matters, according to the evidence of all witnesses in the case who spoke about these issues, including the respondent, the appellant and Ms Kaphle had supported Ms Turner and Ms Christie in their respective refusals to continue to work with T and it therefore seems unlikely that the appellant would have positively directed anyone to work with T if that person was unwilling to do so.

The respondent explained how a person might become a client of the appellant. She said that a written referral, like the one that had been received by the appellant in respect of T, would be considered at a meeting of the Young Families Team of which the respondent was a member. Those present at the meeting would make an assessment whether the referred client was “appropriate and whether they could fit into our individual funding”. There would be a discussion of “the pros and cons of actually being able to work with clients”. The case of T was discussed in this fashion.

In addition, staff working with particular clients of the appellant would discuss the progress of the case. In this way Ms Turner reported to a meeting her interactions with T. According to the respondent, Ms Turner:

“… [E]xpressed that her case plan wasn’t going according to plan, that she did have difficulties with Miss T and her mental health and her drug and alcohol abuse, and also the issues regarding the pregnancy and her drug use, and she would discuss these at the meeting, and her difficulty in working with the client.

… She discussed the – making sexual advances.”

During such meetings, Ms Turner produced letters that had been written by T in which she expressed her desire for a sexual relationship with Ms Turner.

Outside of these meetings, the respondent recalled that she and Ms Turner had had a discussion about T:

“She – there was a particular time in the kitchen after one of the home visits, that Susie was being comforted by Kal. She was crying. She was extremely upset. She recalled – she was saying about a particular advance from Miss T, and she had a letter in her hand.

She had a what in her hand? --- A letter

Right? --- that had made some quite suggestive sexualised advances. I recall some pictures on that letter, and I recall some blood. But she was extremely upset. She was being comforted by Kal. The rest of the Young Families Team were there as well.

You mentioned some pictures. What sort of pictures? --- There was – as I recall it, a love heart. I think a bow and arrow. It had Susie’s name. That she loved her. It was in Texta colour pen, but it was a – quite a – Susie was clutching it in her hands. So Kal was directing her that she shouldn’t – she should not work with this client. She was very upset. She made – Kal was like a nominated leader, I think, because she was older than us, and her experience, and Kal said you – you can’t work with this client anymore.

Do you – was anybody else present during that discussion? --- Yes, the rest of the Young Families Team.

You mentioned that there was something else on the letter. Do you recall what that was? --- Some blood. Sorry, I’m very nervous.

Sorry? --- As I said, I didn’t glance – I only glanced at the letter. It made advances, quite sexualised explicit advances towards Susie.”

This evidence is consistent with the content of the case file entry for 8 September 2009 discussed above.

Ms Christie also reported upon T’s behaviour to a meeting at which the respondent was present. In oral evidence the respondent described what Ms Christie had said:

“So call a spade a spade? --- Thank you. This particular client was very loose with her behaviour. She would regularly make sexualised talk and advances. You know, have you been laid tonight? She would be even more explicit and ask if – excuse me, your Honour – you’ve been fucked lately. She would be within your own personal space. She would – there was a particular time that I was with this client with her daughter and she opened her daughter’s legs and said, do you think my daughter’s being sexually abused? This client was very loose in her behaviour and what she would actually come out with, and you were very uncomfortable with these particular comments towards yourself. It made you feel very uncomfortable, and she was difficult to work with because of this. She would discuss her own sexual conquests for the week. She would – she would be quite explicit with her drug and alcohol use. She would be even under the influence when I came around, so I did other – you know, I’d been to see how she was first. She was a very hard young person to work with because of her looseness with her behaviour.”

The respondent also gave evidence of an incident when she herself witnessed T’s behaviour:

“Do you recall any incident when Miss T attended outside of the Young Families premises and there was an incident? --- I do. I was walking out of the Young Families Team and out of the centre at Newstead, and I saw Miss T behind a pole in the corner. She appeared to be hiding behind the pole. I could see that she had something in her hand, and that she was – I thought she was self harming. I called inside and Helen Wright answered the phone. Susie Turner was inside. I waited until Miss T had support from the other workers before I left. I recall – you know, sorry, the police arrived and the ambulance arrived. There was a bit of an issue in regard to Miss T becoming scared, and I think she went into a neighbour’s yard, but she was very unwell, and Susie Turner assisted her in going to hospital.”

According to the respondent this incident occurred after Ms Turner had ceased working as T’s Young Families support worker but evidently it was before the respondent came to fill that role.

The respondent also gave evidence about an incident she had observed at a McDonald’s Restaurant where she was present with T, Ms Christie and one Jody Cowie. Ms Cowie was an employee who assisted in day-to-day support for T. The respondent observed that, when Ms Christie began to stand up, T slid her hand down the back of Ms Christie’s pants. She said that she saw Ms Christie react in a startled fashion and move away. The respondent said that she had reported the matter to Ms Kaphle and that she had also recorded the incident in her case notes. The case notes contain no such entry. Ms Kaphle was not called as a witness but in oral evidence Ms Christie denied that the incident had ever occurred. She said that, had it occurred, she would have noted it. The learned trial judge made no finding about this matter.

At a meeting with officers of Child Safety on 9 November 2010 Ms Christie said that the respondent would now be addressing T’s “attachment, parenting assistance”. The “attachment” was a reference to a dysfunctional element of T’s relationship with her baby son. On 25 November the respondent met T for the first time in company with Ms Christie. The respondent’s own case note of the meeting said:

“Meeting with T and Laura to introduce myself and the service that I am going to provide. 10 weeks of the Circle of Security program prior to the children arriving for contact. Let T know that I would come initially to meet the children and to observe the attachment as T is concerned that there is no attachment with 1yr old [T’s son].”

In her evidence, the respondent explained that the Circle of Security Program in this case required her to attend at T’s home and together they would watch a DVD. The DVD was not tendered or shown and its content was not explained in evidence. However, it can be inferred from the respondent’s evidence that it showed parents interacting in an appropriate way with their children. According to the respondent the DVD would be stopped during its showing and the respondent would “get [T’s] reflective capacity about what she could see and how she could actually put that into place with her own children”. After they had watched the DVD, T’s children would be brought to the home by a Children Services officer and T would then engage with them under supervision while the respondent observed.

The respondent went to T’s home on 25 November 2010 so that Ms Christie could introduce her as the intended provider of The Circle of Security Program. Between that date and 13 April 2011, when the incident occurred that led to this litigation, the respondent engaged with T either at her home or at other places 17 times. On 3, 10 and 17 December and on 21 January 2011 the respondent attended at T’s home to be present while T had access to her children under the supervision of a Child Safety officer. On 3 February 2011 the respondent attended at T’s home and, according to the case file note which she later made, she explained to T the program that she was to administer. The administration of the program itself began on 10 February 2011 and the respondent returned to T’s home for that purpose on 25 February, 25 March, 7 April and finally, on 13 April 2011. During that period she also attended to “support T” at meetings with Child Safety officers at the offices of the Department of Child Safety at Chermside. These attendances took place on 14 December 2010, 7 February 2011 and during the final interaction on 13 April 2011. In addition, the respondent attended with T at the Childrens Court and the Family Court on two occasions.

According to the respondent’s case notes, none of these meetings apart from the last one involved any remarkable behaviour on the part of T.

The respondent made a case note of the meeting held on 7 February 2011. Ms Christie also attended that meeting. The note read:

“Support for T at FGM Docs Chermside. Spoke about Docs taking out an additional 1 yr order. DOCS stated that the reason for this is that T has not progressed to the point of having the two children back. Order expires 18th Feb. Contacts are now both in the home. Lindsey to do 10 week program COS in the home on Fridays. Lindsey will also support [T] with advocacy re DOCS and family court, but NOT as an intensive support worker. [T] to continue to work with Jodie Othilas [sic] day to day needs and Laura re D & A [Drug and Alcohol].”

The reference to “Jodie Othilas” was in fact to Jodie Cowie who worked for an organisation named “Othilis” which dealt with drug and alcohol issues.

In the meantime, Ms Christie was still having difficulties. T was drug affected during a number of Ms Christie’s visits to her during the same period and was candid to Ms Christie about her inability to stop using drugs. On 3 March 2011 Ms Christie informed Ms Kaighen about T’s verbal abuse, her intoxication by drugs during visits, and that Ms Christie had “started to feel unsafe both physically and emotionally and have had T heavily slamming doors and punching walls”. According to Ms Christie’s case note, Ms Kaighen recommended that she cease home visits because she “should not be going out there by [herself] as [she] could potentially be unsafe especially considering [T’s] escalated drug use and mental health concerns”.

Ms Christie immediately informed T that she would no longer be visiting her. She said that she was prepared to continue to see her at the offices of the appellant but only in order to effect her transition to Biala, an entity that provides services for persons with acute drug and alcohol problems. Ms Christie formalised that position in a letter that she wrote and sent to T.

In oral evidence Ms Christie said that it was her recollection that in the “last couple of months” T’s behaviour had become more “challenging”. Ms Christie had the feeling that T’s drug use had increased and that she was feeling hopeless because she was not getting her children back. She decided that she would no longer attend at T’s home but would be prepared to interview her at the appellant’s offices.

In oral evidence Ms Christie said that it was her recollection that in the “last couple of months” T’s behaviour had become more “challenging”. Ms Christie had the feeling that T’s drug use had increased and that she was feeling hopeless because she was not getting her children back. She decided that she would no longer attend at T’s home but would be prepared to interview her at the appellant’s offices.

On 11 March 2011, the respondent recorded on the case file:

“Called [T] numerous times and left messages about contact today. Waited for a long period of time. No communication. Spoke to Laura re her decision to cease case management and the impact on [T].”

The respondent attended further meetings convened by the Department or at court on 14 and 28 March, 11 April and, finally, on 13 April 2011.

Although in her evidence, the respondent said that she had only furnished “three information sessions” with [T], as discussed earlier the respondent attended at T’s house to begin her Circle of Security work on 25 November 2010. She attended for that purpose again on 3, 10 and 17 December and 21 January, 3, 10 and 25 February, 18 and 25 March and 7 April 2011.

According to the case notes, a s 51H Family Group Meeting was scheduled to be held on 7 April 2011. On that day T had called to say that she was sick. The meeting was postponed until “Tuesday next week”. That Tuesday was 12 April 2011. In fact, a meeting took place attended by the same people on 13 April 2011; it was, seemingly, the Family Group Meeting that had been postponed from the previous week.

The respondent was there to advocate T’s interests. In addition, T’s mother was present with T’s infant nephew in a pram. T’s solicitor from Legal Aid, Ms Fiona Fairbrother, was also present. Two representatives of the Department attended. They all sat at a rectangular table. According to the respondent’s evidence, T asked the respondent to sit on the first seat at the corner of the table, and she did so. T herself sat at the end of the table next to the respondent. As they sat there, according to the respondent, she felt T’s leg caressing her own leg slowly. T then brought her leg up between the respondent’s legs to fondle her genitalia.

The effect upon the respondent was pronounced. This assault brought back the sense of her early child abuse. She said she was “frozen with fear”. She regained sufficient control to move her chair in order to be able to continue with the meeting. T then moved her own chair and repeated her assault with greater force and speed and otherwise in the same manner. The respondent then told T to stop. T replied “you just need a good fucking lay”. The meeting was adjourned. T was openly angry at the respondent. She said “next time I see you can you make sure your husband’s fucked you”.

The respondent was too distraught to drive herself home. She was instructed to cease working with T. She then took time off work but never regained her health sufficiently to return.

Apart from some differences in emphasis, the psychiatrists called respectively by the appellant and the respondent each agreed that the respondent had been severely affected by these assaults. She now suffers from a major depressive disorder, an aggravation of post-traumatic disorder (which had previously been in remission), Cluster B personality traits (primarily borderline), hypertension, reflux, possible sleep disorder, occupational, social and recreational difficulties and poor functioning. Her prognosis is poor. She had a pre-existing vulnerability because of her history of sexual abuse but any prior psychiatric disturbance due to these historical events had “well and truly settled” prior to the assault. The respondent’s psychiatrist, Dr de Leacy, concluded that hers was a most serious case with serious impairment.

Dr de Leacy also expressed the opinion, which the learned trial judge accepted, and which has not been challenged, that the average person would have reacted to these assaults with a sense of revulsion and abandonment and would be likely to develop a psychiatric condition as a result of the incident. In his opinion, the average person would have developed a disorder and the seriousness of the reaction would vary from person to person. The respondent’s past history and pre-existing vulnerability meant that her deterioration had been more serious and had led to a serious permanent impairment.

In paragraph 18 of her Statement of Claim, the respondent alleged that the appellant “should not have permitted its employees to have any form of contact with the subject client and in particular contact involving the Circle of Security Program”. She alleged that her injuries had been caused by the negligence or breach of contract of the appellant in, inter alia, “allowing, permitting or requiring the respondent to undertake support of the subject client”. She also alleged that “a reasonable person in the [appellant’s] position would not have allowed its employees and in particular the [respondent] to be engaged in the Circle of Security Program with the subject client” and that the appellant “was at risk of suffering serious injury if she was engaged in the Circle of Security Program with the subject client”.

Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 provides:

“(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless—

(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b)the risk was not insignificant; and

(c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.