IDEA SERVICES v DAVIS [2021] NZCA 111

IDEA SERVICES v DAVIS [2021] NZCA 111 [14 April 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA748/2020[2021] NZCA 111BETWEEN IDEA SERVICES LIMITEDApplicantAND LEANNE GAYE DAVISRespondentCourt: Brown and Gilbert JJCounsel: G G Ballara and S P Radcliffe for ApplicantP Cranney for RespondentJudgment:(On the papers)14 April 2021 at 9.30 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant is to pay costs to the respondent for a standard application ona band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] The respondent, Leanne Davis, was formerly employed by the applicant,Idea Services Ltd (ISL) as a support worker. In the early hours of 5 December 2016,she was attacked by Mr A, an intellectually-disabled man she was caring for inthe course of her employment. Ms Davis suffered physical injuries, includingconcussion, and possible post-traumatic stress disorder.[2] Ms Davis brought a personal grievous claim, on the basis of unjustifieddisadvantage, against ISL alleging it failed to meet its health and safety obligations toher.1 Her claim was dismissed by the Employment Relations Authority (the Authority)on 29 October 2019.2[3] Ms Davis challenged the Authority's determination in the Employment Court.She claimed she was disadvantaged in her employment and/or ISL breached the termsof the applicable collective employment agreement. In a judgment delivered on11 December 2020, Judge Corkill set aside the Authority's determination and upheldMs Davis' claims.3 The Judge found that ISL failed to comply with its health andsafety obligations to Ms Davis under the Health and Safety at Work Act 2015 and thatdisadvantage was suffered, including physical injuries and significant distress.4Alternatively, the Judge found that ISL breached the health and safety obligations setout in the collective employment agreement.5 The Judge made declarationsaccordingly and awarded costs to Ms Davis.6Application for leave to appeal on a question of law[4] ISL now applies under s 214 of the Employment Relations Act 2000 for leaveto appeal to this Court. It contends there are three questions of law arising out ofthe Employment Court's judgment of general or public importance justifying the delayand expense of a further appeal. Specifically, ISL says the Employment Court erredin law by:(a) placing health and safety obligations on ISL which were properly thoseof third-party agencies (government and private health servicesproviders that were required to assess and treat Mr A);1 Employment Relations Act 2000, s 103(1)(b).2 Davis v Idea Services Ltd [2019] NZERA Wellington 610.3 Davis v Idea Services Ltd [2020] NZEmpC 225 [Employment Court judgment].4 At [178].5 At [179].6 At [181].(b) conducting an impermissible assessment based on hindsight rather thanforeseeability of harm and ISL's obligation to take all reasonablypracticable steps to address such harm; and(c) taking insufficient account of Ms Davis' own health and safetyobligations to take all reasonably practicable steps to address suchharm.Background[5] ISL operates three residences situated in close proximity to each other. Mr Aoccupied one of these residences, described in the Employment Court judgment asResidence 2. The Judge noted that, as a result of Mr A's intellectual disability, hisbehaviours can be very challenging, including shouting, swearing, verbal abuse,banging walls, throwing objects around and physical aggression. The Judge also notedthat Mr A has a history of "nocturnal issues" and, at 195 cm tall, he can appear veryimposing.7 On the other hand, Mr A enjoys chatting, laughing and joking, helping atthe residence and engaging in other activities that appeal to him.8[6] ISL developed and maintained support information relating to Mr A, includinga behavioural support plan, personal support information and an Alerts andCrisis Response document. The behavioural support plan contained high levelinformation about how to respond in the event of adverse behaviour escalating.This document identified the possibility that Mr A may attempt to hit a staff member.The personal support information included details of Mr A's bedtime routine (notingthe need for consistency) and general information about how to provide support forreducing anxiety. The Alerts and Crisis Response document described how to respondto particular types of behaviour, including verbal or physical aggression.9[7] On the night of the attack, Ms Davis was working a sleepover shift. Mr A hadbeen experiencing difficulties sleeping over an extended period and he had difficultysettling that evening. His behaviour deteriorated to the point he was ranting and7 At [44].8 At [45].9 At [46].throwing items out of the residence. Ms Davis was hit in the head by some footwear.She decided to extricate herself by running to the neighbouring facility, also operatedby ISL. However, before she could gain entry to this residence, Mr A, who waschasing her, tackled her to the ground, winding her. Mr A then hit Ms Davis aroundthe head, shoulder and arm causing her to lose consciousness for a short time.10[8] Ms Davis pleaded several breaches by ISL of its health and safety obligations.11The essence of her claim was that Mr A demonstrated an escalating pattern ofaggressive behaviour which placed staff at risk.12 ISL's response in summary was thatalthough there were discrete examples of aggressive behaviour, there was noescalating pattern and there were no red flags suggesting its systems and processeswere inadequate. Moreover, ISL contended Ms Davis was an experienced supportworker who had placed herself at risk by failing to meet her own health and safetyresponsibilities.13[9] The Judge reviewed in some detail the background leading up to the night ofthe attack, including the protocols established by ISL and the steps taken to addressMr A's behavioural problems over the course of 2016.14 At a team meeting on13 October 2016 attended by the service manager, Ms Davis, other support workersand Mr A's father, it was noted that most staff were having trouble getting Mr A tosleep at night. The situation had become sufficiently serious that staff weremaintaining sleep charts.15 The following night, Mr A grabbed Ms Davis' arm verytightly. As a result of this incident, Ms Davis locked herself in the office atthe residence.16 The service manager was on duty for the next three nights andobserved the issues himself. He discussed Mr A's sleeping problems with Ms Davisand Mr A's father and suggested a referral to a third-party agency specialising inbehavioural support. Although this was agreed to, it could not take place immediatelyand did not occur prior to the attack on Ms Davis on 5 December 2016.1710 At [108]–[120].11 At [5].12 At [137].13 At [138].14 At [59]–[135].15 At [74] and [142].16 At [145].17 At [146].[10] A further night-time incident occurred on 28 October 2016 when Mr A becameaggressive and threw books at Ms Davis. After a discussion with Ms Davis, on-callstaff and Mr A's father, it was agreed that Mr A should attend his doctor to address hissleeping problems and for prescription medication to be administered as necessary.The drug Clonazepam was prescribed and was used to help settle Mr A, but there wasno evidence this medication was intended to address the problem of sleeplessness.18[11] A further incident occurred on 3 November 2016 when Mr A was unsettled andbecame agitated. As a result, a referral was made to the DHB Mental Health DisabilityTeam but, again, a prompt appointment could not be arranged.19 Mr A attendedanother doctor's appointment on 28 November 2016, but this was to address skin andrash issues only.20[12] A further incident was reported by Ms Davis on 29 November 2016. Mr Abecame agitated, was throwing things around, slamming doors and swearing.Ms Davis noted on the incident report that this behaviour was "becoming a pattern".21[13] The Judge found that these and other events strongly suggested a pattern ofsleep deprivation which was adversely affecting Mr A's mood and behaviour and therewas an obvious need to address this issue.22 The Judge noted that ISL provided noevidence to explain why it did not do so.23 The Judge found that by lateNovember 2016, a fair and reasonable employer could be expected to have followedup on the issue of night-time medication, especially given that appointments withexternal agencies could not be obtained in the meantime.24[14] A further significant incident, concerning another support worker, occurredtwo days prior to the attack, on Saturday, 3 December 2016. When the support worker,a male, arrived at work, Mr A came outside and started swearing at him. As the supportworker walked past him, Mr A punched him in the shoulder from behind. Later, while18 At [147] and [150].19 At [148].20 At [149].21 At [98].22 At [151].23 At [150]–[152].24 At [153].the support worker was reading relevant diary entries as part of a staff handover, Mr Aseized the diaries and hit the support worker on the head with them. As this workeraccompanied the staff member he was replacing to her car, Mr A came up behind himand punched him in the lower back. Mr A punched him again inside the facility withenough force to cause him to hit a wall outside the office.25 Following telephoneinstructions of on-call support staff, the support worker left the residence and relocatedto the neighbouring facility because it appeared Mr A was not going to stop attackinghim. When relief staff could not be arranged, Mr A's father was contacted and askedto come and pick Mr A up.26[15] Despite the serious nature of this incident, the Judge noted there was noevidence that senior staff became involved in reviewing or addressing the safety issuesover the weekend. Nor was there any evidence of any steps being taken at that time.27The Judge considered that a fair and reasonable employer could be expected to regardthese events as sufficiently serious as to warrant an immediate review of Mr A's carearrangements. Mr A's level of aggression had plainly increased from that described inthe Alerts and Crisis Response document.28[16] Ms Davis was attacked by Mr A two days later. This was her first sleepovershift with Mr A since the incident reported on 29 November 2016.29 The Judge notedthere was no evidence Ms Davis had been forewarned that Mr A's behaviour hadescalated to the point where safety issues needed to be addressed.30[17] The Judge was not persuaded that Ms Davis failed to meet her own health andsafety obligations. In finding there were no failures of judgement on her part,the Judge observed that a senior service manager concluded in a subsequent review ofthe attack that "the whole incident was well handled by [Ms Davis]".31 There was nosuggestion in the review that Ms Davis ought to have taken the steps referred to atthe hearing, such as using her car to get away. The Judge regarded these points as25 At [102]–[103].26 At [104].27 At [162].28 At [163].29 At [108].30 At [164].31 At [168].having been made with the benefit of hindsight and without sufficient regard tothe contemporaneous evidence. The Judge also observed there was no suggestion thatMs Davis had failed to follow her training, which was up-to-date.32Assessment[18] There is no right of appeal from a decision of the Employment Court.An appeal is restricted to a question of law and requires leave. Leave may only begranted if, in the opinion of this Court, the proposed question of law raises an issue ofgeneral or public importance or for some other reason ought to be submitted fordetermination by this Court.33[19] We do not consider that any of the proposed questions of law meet the criteriajustifying leave. The Judge applied settled law to the facts found followinga comprehensive review of the relevant evidence. The outcome on all issues wasintensely fact-specific. In our view, no question of general or public importance arises.[20] Specifically, it does not appear to us to be reasonably arguable that the Judgeplaced health and safety obligations on ISL which were instead owed by third-partyagencies (government and private health services providers that were required toassess and treat Mr A). The first proposed question of law has insufficient prospect ofsuccess to justify leave being granted. There is nothing in the judgment to suggest thatthe Judge made his assessment with the benefit of hindsight rather than focusing onthe foreseeability of harm. This second proposed issue does not raise any question ofgeneral or public importance, nor does it appear to be seriously arguable. The thirdproposed question — that the Judge failed to take sufficient account of Ms Davis' ownhealth and safety obligations — is not a question of law. The Judge's assessment ofthis issue was purely one of fact. We also do not see any seriously arguable error inthe Judge's careful analysis.Result[21] The application for leave to appeal is declined.32 At [168].33 Employment Relations Act, s 214(3).[22] The applicant is to pay costs to the respondent for a standard application ona band A basis and usual disbursements.Solicitors:McBride Davenport James, Wellington for ApplicantOakley Moran, Wellington for Respondent