Does an Employer owe a Duty of Care for Third Party Criminal Acts?

does an employer owe a duty of care for third party criminal acts

Bell v Nexus Primary Health [2022] VSC 605


This case, heard in the Supreme Court of Victoria (the Court), determined whether an employer owes a duty of care to an employee who is harmed due to their employment at a place and time unrelated to the employer.


Ms Tracey Lee Bell, the Plaintiff, an employee of Nexus Primary Health, the Defendant, (NPH), was employed as a family violence outreach worker and was subsequently attacked outside work hours and at place unrelated to NPH.  The suspected perpetrator was the husband of a woman to whom Ms Bell was providing support in the course of her employment.

Prior to her employment with NPH, Ms Bell had experienced mental health issues including depression and physical injuries from domestic violence which caused her serious stress resulting in hospitalisation and a variety of psychiatric assessments and related treatments.

Ms Bell also experienced health issues in 2011 in which she was diagnosed, by Associate Professor Rao (“Professor Rao”), as having borderline personality disorder and a further onset of depression. NPH was aware of this diagnosis at the time.

The Court was asked to determine whether there was a duty of care owed by NPH in relation to Ms Bell and her role as a family violence worker and whether the injury, loss and damage was a consequence of a breach of the duty of care owed by NPH to Ms Bell as its employee.


Ms Bell was employed by NPH in a variety of roles. At the time of the attack, she was a family violence outreach worker. Her role was to support victims of family violence which involved attending the homes of NPH clients, keeping notes and records of their situation, and attending court hearings.

The Incident

On 27 March 2013, Ms Bell was violently attacked whilst stopping to collect a script on the way to the NPH premises (“the incident”).

After the incident Ms Bell was subjected to further harassment including:

  • A letter delivered to her home address that was of an unpleasant and ominous nature and referred to the incident.
  • The delivery of a ‘Christmas box’ to her home address with vulgar and threatening language.
  • A brick being thrown through the window of her home.

Following the incident, Ms Bell was continually treated by Professor Rao for a variety of issues related to the incident including post-traumatic stress disorder and severe psychiatric symptoms.


Was Mr Wales the assailant in ‘the incident’?

Ms Bell and her counsel contended that on the balance of probabilities, the assailant in the incident was Mr Peter Wales, the husband of an NPH client (Mrs Wales) Ms Bell was assisting. NPH contended that such a conclusion could not be reached and there needed to be a ‘reasonable and definite inference’ that Mr Wales was the assailant rather than ‘conflicting inferences of equal degrees of probability’.

The Court noted that the records relating to Ms Bell’s work indicated that most clients were identified as ‘low risk’ whilst there was only one client under the care of Ms Bell that was identified as a ‘high risk client’. This client was Mrs Wales. In her work supporting Mrs Wales, Ms Bell could have easily been identified by Mr Wales.

After considering the substantial evidence provided by the parties the Court was satisfied that Mr Wales, on the balance of probabilities, was the assailant in the incident.

Did NPH owe a duty of care to Ms Bell and was that duty breached?

Counsel for NPH submitted that a duty of care only arises “when the employer has the ability to control the risk” meaning that generally, the only time in which a duty of care is owed by the employer to the employee, would be on the premises in which their duties were carried out and during work hours.

The Court indicated that the circumstances of the relationship between the employer and employee should be considered when determining whether there gives rise to a duty for the employer to take reasonable care for the safety of their employees. The Court further noted that it is well-established that an employer owes a duty to their employees to provide a safe system of work that requires the employer to anticipate the risks posed to the safety of the employee in carrying out the work.

The Court used the principle in the case Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW), which was that an employer has the capacity to control an employee’s working situation and the work that follows. Further, the principle states that an employer is to provide a safe system of work and ensure that reasonable care is taken for the employee’s safety, even if it takes them outside of the employer’s premises.

The Court used this principle to determine that the risk posed to the safety of Ms Bell by NPH’s system of work is not restricted by the boundaries of NPH’s premises of work.

The matters which were considered by the Court before determining whether a duty is owed by NPH to Ms Bell included:

  • The nature and immediacy of the risk imposed to the employee.
  • The extent to which the risk may be addressed and controlled by NPH.
  • The knowledge of the risk and any assumption of responsibility by NPH.
  • The vulnerability of Ms Bell.

The Court concluded that the nature of Ms Bells work carried a risk that an angry or dissatisfied family member may approach, abuse or assault a family violence outreach worker.

The Court also heard evidence that NPH was aware of such a risk due to an attack on Julie Albert, which had occurred in 2009 or 2010, where Ms Albert was mistaken for a family violence outreach worker.

NPH had also taken measures such as employing security on their premises and introducing policies to manage violent and abusive situations, manage critical incidents, providing outreach workers with a mobile phone and having an expectation that its staff’s whereabouts were always known.

The Court found that NPH must therefore be taken to have both assumed their duty, and had a duty, to take reasonable care for Ms Bell’s safety. The measures taken by NPH to protect its employees, inclusive of Ms Bell, were incomplete as they did not comprehensively address all aspects of risk posed to family violence outreach workers not only on NPH’s premises, but also when attending a client’s home or supporting clients in the community.

Therefore, the Court concluded that NPH owed a duty of care to Ms Bell and by failing to take further measures to protect Ms Bell, was deemed to be a breach of that duty of care.


The Court noted that the evidence supported the view that the incident caused Ms Bell to experience post-traumatic stress disorder, resulting in her inability to engage in further employment and had ultimately ‘destroyed’ Ms Bell’s life.

The Court concluded that due to a duty of care being owed by NPH to Ms Bell, who therefore suffered injury, loss and damage due to that duty being breached, NPH would be liable to compensate Ms Bell in the form of damages.

The total damages awarded to Ms Bell equated to a sum of $1,244,615.55.

Compliance Impact

This case highlights the principle that a duty of care owed by an employer to its employees to take measures to protect their safety is not always constrained to the employer’s premises.

Employers have a duty of care to ensure the safety of its employees both on its work premises and out in the community dependant on the nature and immediacy of the risk imposed to the employee in the course of the work, the extent to which the risk may be addressed and controlled by the employer and the vulnerability of the employee to any risk in the engagement of their work.

It is recommended that organisations implement, where appropriate, policies and procedures to address such risks.

How Health Legal can help:

For further information please contact the Health Legal and Law Compliance team via our contact page here.