Gilmour v Blue Care - [2024] QDC 189

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 182

Walker v Greenmountain Food Processing Ltd [2020] QSC 329

COUNSEL:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gilmour v Blue Care

Details

AGLC: Gilmour v Blue Care [2024] QDC 189
Case: [2024] QDC 189
Decision Date: 1 November 2024

CaseChat Overview and Summary

The case of Gilmour v Blue Care involved a claim for personal injury sustained by the plaintiff in the form of post-traumatic stress disorder (PTSD). The plaintiff was employed by the defendant, Blue Care, and while undertaking duties at an external site not operated by the defendant, was subjected to criminal behaviour by a third party residing at that site. The plaintiff alleged that the defendant was negligent in failing to conduct a risk assessment of the external site and in not providing her with training specifically addressing the risk of sexual assault in the workplace. The matter was heard in the Supreme Court of Queensland.

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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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 182 Walker v Greenmountain Food Processing Ltd [2020] QSC 329
COUNSEL:	A Stobie for the plaintiff HB Berghofer for the defendant
SOLICITORS:	McNamara Law for the plaintiff BT Lawyers for the defendant