DISTRICT COURT OF QUEENSLAND
CITATION:
Gilmour v Blue Care [2024] QDC 189
PARTIES: MADISON JEAN GILMOUR
(Plaintiff)
v
BLUE CARE ABN 25 548 385 225(Defendant)
FILE NO:
IPS 15 of 2022
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
1 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
8-9, 16 October 2024
JUDGE:
Loury KC DCJ
ORDERS:
1. Judgment for the plaintiff against the defendant in the amount of $239 272.98.
CATCHWORDS:
TORTS – NEGLIGENCE – PERSONAL INJURY – where the plaintiff is alleged to have suffered a workplace injury – where the workplace injury suffered was PTSD – where the plaintiff undertook duties for her employer at an external site – where the external site was not operated by the employer – where criminal behaviour of a third party residing at the external site was committed against the plaintiff – where the defendant did not undertake a risk assessment of the external site – where the plaintiff did not receive training directed at the risk of sexual assault in the workplace
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURY – where the plaintiff claims general damages – application of sch 8 r 9 Workers’ Compensation and Rehabilitation Act 2014 – where the plaintiff claims damages for future economic loss and impairment of earning capacity – where the plaintiff’s injury has prospects of improvement over time – where the plaintiff suffered the injury at a youthful age
LEGISLATION:
Uniform Civil Procedure Rules 1999 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld)CASES:
Czatyrko v Edith Cowan University (2005) 214 ALR 349 Erickson v Bagley [2015] VSCA 220
Fox v Wood (1981) 148 CLR 438
Joslyn v Berryman (2003) 214 CLR 552
Karatjas v Deakin University (2012) 35 VR 355
Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Strong v Woolworths Limited (2012) 246 CLR 182COUNSEL: A Stobie for the plaintiff
HB Berghofer for the defendant
SOLICITORS: McNamara Law for the plaintiff
BT Lawyers for the defendant
The plaintiff was a 22-year-old idealistic young woman working as a personal carer for the defendant, Blue Care, in April 2019. On 24 April 2019, she attended Lilliput Caring, a hostel that predominantly houses men with mental health and/or addiction problems, to service one of Blue Care's clients. Whilst performing that work, another resident who was not a client of Blue Care asked the plaintiff to assist him in making his bed. Whilst doing so, the resident, Mr L, sexually assaulted the plaintiff.
The plaintiff was significantly affected by this assault. She has been diagnosed with chronic post-traumatic stress disorder (PTSD). She was unable to return to work as a personal care worker in the aftermath of the assault and will never be able to return to work as a personal care worker.
The plaintiff claims damages for…
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- AGLC
- Gilmour v Blue Care [2024] QDC 189
- Case
- [2024] QDC 189
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the defendant owed a duty of care to the plaintiff, whether that duty was breached, and if so, whether the breach caused the plaintiff’s injury. Additionally, the court had to determine the appropriate measure of damages, including general damages, damages for future economic loss, and impairment of earning capacity, in accordance with the provisions of the Workers’ Compensation and Rehabilitation Act 2014.
In finding for the plaintiff, the court held that the defendant did owe a duty of care to the plaintiff and that this duty was breached. The court found that the failure to conduct a risk assessment of the external site and the lack of specific training for the plaintiff concerning the risk of sexual assault were significant breaches of that duty. The court also accepted that these breaches caused the plaintiff’s injury. Regarding damages, the court applied the relevant statutory provisions and found that the plaintiff was entitled to general damages of $130,000, damages for future economic loss of $100,000, and damages for impairment of earning capacity of $9,272.98.
The court ordered that judgment be entered in favour of the plaintiff against the defendant in the amount of $239,272.98, representing the total damages awarded.
Orders
Orders of the court
1. Judgment for the plaintiff against the defendant in the amount of $239 272.98.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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