Failure to psychologically profile grounds for damages for mental harm

16 April 2018

A worker employed by Queensland Rail Ltd (QR) has been awarded over $150,000 in damages after Queensland District Court Judge David Reid ruled that it would have been abundantly clear that he was unsuitable for his role if his employer had conducted psychological profiling.

The worker had been previously employed by QR as a day customer service officer before accepting a role as a night time customer service officer, which he was offered without the need for interview.

The role required him to work alone at railway stations at night to “improve the visible security presence”. In October and November 2011 the worker was involved in three separate incidents with groups of youths, including one where he was beaten by four young males he had had a verbal altercation with. The worker alleged he suffered a psychological injury as a result of the incidents, including ‘symptoms of post-traumatic stress disorder and susceptibility to the onset of psychiatric injury’.

Judge Reid found that had it conducted psychological profiling, QR would have identified features about the worker that made him unsuitable for the ‘after dark’ customer service officer role. The features included a predisposition to anger and history of behavioural problems, which was found to increase the likelihood that he fight with customers, placing him at risk of subsequent assaults.

The worker alleged QR breached its duty of care by failing to psychologically profile him to determine his suitability for the position, as was recommended by QR’s own risk assessment of the role. His argument rested on the test established in Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168, which involves considering whether there were any facts or circumstances which would have alerted a reasonable employer to the need for “special further enquiry” into a worker’s medical condition.

QR argued there was no requirement for a risk assessment and the worker’s injuries were caused by his own negligent actions. QR submitted that many other workers who engaged in night work; such as taxi drivers, bus drivers and nurses, faced similar risks however there is no requirement for these workers to undergo profiling prior to commencing work.

The matter did not rest alone on the failure to psychologically profile, with the Court also considering the matter in light of training that could have been provided to protect employees who were reasonably likely to encounter threatening situations and/or at significant risk of verbal and physical assaults. Judge Reid did state however that the risk assessment’s recommendation to profile was a material fact in establishing foreseeability.

The Court ultimately held that QR was aware that employees in the plaintiff’s role were at significant risk of assault. As such had QR profiled the worker, it would have discovered his history of behavioural problems and a predisposition to anger and subsequently almost certainty determined him unsuitable for the role. As such, QR was found liable to the worker for the consequences of its breach of its duty of care.

The worker was awarded $153,150 in damages, including $114,028 in past economic loss.

Keong v Queensland Rail Ltd [2018] QDC 31.