Gilmour v Blue Care
[2024] QDC 189 · Loury KC DCJ
The Plaintiff was a 22-year-old female personal care worker employed by Blue Care. In April 2019, while servicing a Blue Care client at a hostel that mainly housed men with mental health and addiction problems, another resident lured her into his room by asking her to help him make his bed, but then sexually assaulted her. Specifically, he came up behind her, grabbed her on the hips, and tried to pull her pants down. He pressed his erect penis against her. She hit him, he let her go, and she ran from the room.
She developed chronic post-traumatic stress disorder and could never return to care work. The main questions were whether Blue Care, as her employer, should have foreseen the risk of such an assault and taken steps to protect her, and whether she was partly to blame for entering the resident's room. The court found Blue Care had breached its duty of care by sending a young woman alone to a hostel without any risk assessment, without requiring staff to work in pairs, and without proper training about sexual assault risks. The judge rejected the defendant's suggestion that the plaintiff was careless, finding her conduct was at most inadvertent. This illustrates the danger of victim-blaming in workplace sexual assault litigation: - the focus should remain on the employer’s systems of work and risk controls, not on criticising a young care worker for responding humanely to a resident’s request for help.
She was awarded $239,272.98, with future economic loss the largest component.
Incident & injury
Sexual assault by a non-client resident at a supported accommodation hostel while the plaintiff was working as a personal care worker servicing a Blue Care client.
- Body regions
- Psychiatric
- Diagnoses
- Chronic post-traumatic stress disorder (PTSD)
- Incident date
- 24 April 2019
- Location
- Lilliput Caring Hostel, Ipswich
Quick facts
- Date of judgment
- 1 November 2024
- Claim type
- WCRA Common Law
- Proceeding
- Trial
- Plaintiff outcome
- Successful
- Plaintiff age at injury
- 22
- Occupation
- Personal care worker Community & Personal Service Worker
- Liability
- Partial
- ISV assessed
- 4 · WCRR Schedule 9 Part 2 item 12 (mental disorder)
- Total damages
- $239,273
Outcome
Judgment for the plaintiff against Blue Care in the sum of $239,272.98. The court found Blue Care breached its duty of care by failing to conduct a risk assessment of the external hostel, failing to require workers to attend in pairs, and failing to warn or train the plaintiff about the risk of sexual assault. No contributory negligence was found.
Defendant
1 Blue Care
Employer
- Apportionment
- 100%
- Judgment against this defendant
- $239,273
- WorkCover refund
- $17,238
Heads of damage
| General damages | $5,800 |
|---|---|
| Past economic loss | $85,992 |
| Interest on past EL | $8,507 |
| Past superannuation | $8,685 |
| Future loss of economic capacity | $120,000 |
| Future superannuation | $13,596 |
| Past special damages (plaintiff) | $11,300 |
| Future special damages | $2,500 |
| Fox v Wood | $131 |
| Subtotal before refunds | $256,511 |
Key issues
Gilmour v Blue Care [2024] QDC 189
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