Barry Johnson v State of NSW [2006] NSWIRComm 109 | Case summary

Barry Johnson v State of NSW [2006] NSWIRComm 109 | Case summary | Zoe

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Matter No. IRC 7029 of 2003 (as amended) 4 The second charge relates to the events on 11 December 2001, in which it is further alleged that the defendant breached s8(1) of the OHS Act in that it: failed to ensure health, safety and welfare at work of all its employees, and in particular Ronald George Calrow, Kenneth Charles Ambler and Lindsay John Cotterill, and Melissa Jane McInnes, in that the employer failed to ensure the systems of work of the employees, including emergency communication mechanism, were safe and without risk to health, contrary to section 8(1) of the Occupational Health and Safety Act 2000. Particulars: 1. The defendant employed teachers at its Dover Heights High School (now known as Rose Bay Secondary College) (the school). 2. There was a potential risk to a teacher of physical injury or psychological injury, or both, as a result of actual or threatened violence by AL or having to restrain AL. 3. On 11 December 2001, AL entered the school and threatened students and teachers with a butchers knife. 4. Mr Ambler has been diagnosed with Post Traumatic Stress Disorder. 5. Ms McInnes suffered Post Traumatic Stress Disorder. 6. Mr Cotterill suffered with Post Traumatic Stress Disorder, anxiety and depression. 7. The defendant's breaches comprised any of the following aspects: (a) Failing to prevent AL entering the school. (b) Failing to undertake an adequate risk assessment in relation to the potential risk occurring due to AL attending the school. (c) Failing to ensure that there was available the result of a complete medical, psychological and psychiatric assessment of AL. (d) Failing to adequately inform the employees and consult them about the previous incidents of AL's actual or threatened violence at the school or at any of his past schools, or both, in order to identify the potential risk and incident prevention or reduction strategies. (e) Failing to provide a security guard or security guards at the school. (f) Failing to have in place adequate communication mechanism so that there was communicated to Mr Cotterill or Ms McInnes, or both, any emergency caused by AL or there was a need to move these teachers and their students to a safe place, or both. 8. There was a causal nexus between any of the defendant's breaches and the potential risk. 9. Additionally, or in the alternative, there was a causal nexus between any of the accused person's breaches and the actual injury to Mr Ambler, the actual injury to Mr Cotterill and the actual injury to Ms McInnes. 5 Both Applications for Order were issued under s8(1) of OHS Act which relevantly read: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 6 The defendant pleaded not guilty to each charge and raised no objection to the charges being heard together. It was agreed between the parties that the evidence in one charge, where relevant, would be evidence in the other. 7 An admission on matters of fact by the defendant pursuant to s184(a) of the Evidence Act 1995 was tendered which relevantly reads as follows: 1. On 10 and 11 December 2001, the teachers were members of the New South Wales Teachers Federation. 2. On 10 December 2001, due to the incident at the school on that day, Mr Calrow suffered a hernia on his right hand side and strained muscles on his left hand side. Mr Calrow required an operation and physiotherapy. 3. On 11 December 2001, due to the incident at the school on that day, Mr Cotterill suffered Post-Traumatic Stress Disorder, anxiety and depression and did not return to work at the school. 4. On 11 December 2001, due to the incident at the school on that day, Ms McInnes suffered Post-Traumatic Stress Disorder and was certified unfit for work for periods of time. 5. On 11 December 2001 due to the incident at the school on that day, Mr Ambler suffered Post-Traumatic Stress Disorder and Emotional Trauma. Although no time off from work has occurred, counselling has been required. 8 Mr B.G. Docking, of counsel, appeared for the prosecutor. The prosecutor called the following witnesses: Joan Elizabeth Lemaire, Industrial Officer of the NSW Teachers Federation, Robyn Patricia Hromek, Bondi District Guidance Officer of the defendant, Melissa McInnes, Physical Education Teacher at the school, Peter Morrison, Carpenter, Lindsay John Cotterill, Retired Teacher at the school, Deanne Louise Barton, Teacher, Kenneth Charles Ambler, Head Science Teacher at the school, Tracy Mitchell, School Counsellor at the school, William Petrohilos, Acting Deputy Principal/Head Teacher of Mathematics at the school, Vincent Severino, Assistant Principal Behaviour Team, Assistant Principal of the Bondi District behaviour team John Labone, School Counsellor at Glebe High School, Therese Metzl, Teacher/Welfare Committee Co-ordinator at the school, Ronald Calrow, Deputy Principal, at the school, Katherine Anne Deacon, Officer of the NSW Teachers Federation, Henry Rajendra, Administration Officer/City Organiser of the NSW Teachers Federation, and Fiona Stuart, City Organiser of the NSW Teachers Federation. 9 Mr B.D. Hodgkinson SC with Ms W.G. Thompson, of counsel, appeared for the defendant. The defendant called Roger Stonehouse, who was at the relevant dates in 2001, the Co-ordinator Student Welfare for eight districts within the department, one of which covered the school. He is at present Acting Manager of the Behaviour Programmes Unit within the department. 10 From the evidence, I am satisfied as to the following recital of events. History of enrolment at the School 11 On 15 October 2001, at the beginning of Term 4 of the school year, AL was enrolled by his mother as a student at the school. His previous school was listed on the enrolment application as Kepnock High School in Queensland. Within a few weeks of his enrolment, AL moved into his Aunt's house and the Aunt was recorded by the school as his guardian. 12 AL was enrolled into Year 9, repeating the class, and was 15 years old at the time enrolment. In high school, students study selected subjects. The school was a mainstream high school generally enrolling, but not exclusively, students from the local area. There were between 300-350 students enrolled and 35 teachers were on staff. 13 The school was located in a residential area and has seven entrances. 14 The educational history of AL as provided to the school on enrolment was very limited. In this case, there was no history given of any attendance in NSW State schools - either at any high school or primary school. 15 On 25 October 2001, less than two weeks after his enrolment, AL was placed on a "short" suspension for throwing chalk at the head of Mr Braid, the technical drawing teacher. The chalk missed Mr Braid's head but the strength of AL's throw resulted in the piece of chalk becoming embedded in the board of the classroom. Mr Braid approached Mr Calrow, the Deputy Principal, recommending the suspension of AL (through the school system of a contact sheet). Mr Calrow who had, by delegation from the Principal, the responsibility for discipline in the school, inspected the classroom where AL threw the chalk. Mr Calrow noted the chalk "had impacted on the blackboard to such a degree it stuck to it and didn't bounce." 16 After his inspection, Mr Calrow ordered a one day suspension of AL. In accordance with school procedure, Ms K. Broomhead, the Principal of the school, wrote a letter to AL's aunt as AL's guardian informing her AL was suspended from attending school for one day on 26 October 2001. Upon his return to the school, AL had to fill in the School Suspension Document in which he assured the school he had learnt from his suspension. AL wrote he would "concentrate on not getting into trouble" and "nothing I haven't tried." 17 On 30 October 2001, as part of the school Disciplinary Policy, Ms Broomhead the Principal issued a Red Book to AL (a warning to the student regarding behaviour).

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Could you please see new student (2 weeks) ... (AL). A teacher has expressed concern re his behaviour. He talks about killing quite frequently. Please do not mention that this is the reason you want to see him - as teacher doesn't want it getting back to her. He has come down from Q'land + says he's been kicked out of all the schools there. He has already been suspended for throwing chalk at a teacher. I think he needs help with behaviour management and a gut feeling tells me he would (sic) be dangerous. Thanks Sue Martin 20 On 1 November 2001, Mr Petrohilos, Mathematics Teacher and Relief Deputy Principal, (Mr Calrow, the Deputy Principal was on leave) placed AL on a detention for not wearing the proper school uniform. AL missed the uniform detention on 5 November 2001. 21 On 5 November 2001, Ms Mitchell, following Ms Martin's written request, (and it would appear five days after Ms Martin wrote the referral and probably the next time Ms Mitchell was at the school) held an initial interview with AL. She obtained some of his prior school history, his family background, his previous counselling and some details of his prior medication. AL revealed his memory of his school history as follows: · In Year 4 - Dulwich Hill Primary School; · Year 4 to 6 - Canterbury Public School. He revealed he had been in trouble in Year 6 and had "burnt a class, and stabbed a student in the hand"; · Year 7- 9 - Canterbury Boys High School who he said "he had lots of suspension(s)", had been in a fight in class and threatened to kill a student". He revealed he had been expelled from Glebe High School. · Year 9 - Glebe High School. He revealed he was yelling in class and was "stealing". · Term 4 - Year 9 - Kepnock High School in Bundaberg Queensland. AL asserted he had 5 suspensions and was expelled for stealing and threatening to "bash" another student. · AL revealed he was then five months out of school. 22 As to his family background, AL revealed he had lived with his mother but was moved to his father's home to assist in him finding a new school. He revealed, at the time of the interview, he was living with his aunt as the police had asked him to leave his mother's house when he "threatened (a) resident to slit his throat." He saw his mother "a lot" but was not allowed near her home. He also revealed to Ms Mitchell he had had previous counselling and a psychiatric assessment. His mother, he said, was currently arranging ongoing treatment in Sydney. 23 As a result of information obtained from AL, Ms Mitchell was able to determine there would exist a District Guidance File on AL held in some NSW school. A record of these files is kept on a central computer system called "TRIM". It allows school counsellors to trace existing District Guidance Files while files are kept up-to-date by school counsellors. The computer system records the last school to which the file has been sent. Ms Mitchell found there was a file on AL and the TRIM record revealed it was held at Glebe High School. Ms Mitchell also noted from the TRIM record that access to the record had been sought from the Child and Youth Mental Health Service (Queensland). The service sought information about AL's school history. 24 On 5 November 2001, Ms Mitchell requested AL's District Guidance File from Glebe High School. She also on that date referred AL to see Paul Bollard, the career adviser, at the school. 25 On 7 November 2001, the School Welfare Team held a meeting in which AL was mentioned. The following teachers - M. Alexandria, S. Martin, M. Clachan, T. Metzl and M. Rivett were present at that meeting. Ms Metzl was the Welfare Team Co-ordinator. AL's behaviour was recorded as of "concern" and it was determined "to monitor" him. 26 On 8 November 2001, Mr Labone, School Counsellor at Glebe High School sent the District Guidance File to his District Guidance Office in Cleveland Street. 27 On 13 November 2001, Ms Mitchell had a further interview with AL and spoke to AL's mother by telephone. AL's mother informed Ms Mitchell, AL was suffering from depression, anxiety disorder, was diagnosed with ADHD when he was 11 years old, had all the symptoms of an excessive compulsive disorder, had been, but was not at the present time, taking "Luvox" medication. AL's mother did not want to medicate AL but revealed she had given him some low dose medication that year after he had problems at school. She revealed he was previously involved with Asian gangs. AL's mother then gave consent for the school to speak to the Child and Youth Mental Health Service (Queensland) regarding their medical assessment of AL. Ms Mitchell then determined to refer AL to Mr Chris Payland, psychologist at Prince of Wales Adolescent Service. Ms Mitchell in evidence stated the mother was organising this assessment at Prince Of Wales Hospital. 28 On 19 November 2001, AL's mother gave permission for Ms Mitchell to obtain "reports" from Child and Youth Mental Health Services (Queensland). Ms Martin requested the reports on the same date. AL's mother then spoke of AL experimenting with marijuana "but concerns if he tries "e" or amphetamine base(d) drugs due to current medication". She also revealed AL had "unresolved feelings re uncle's attempted suicide - close with uncle who (is) currently in jail, (and) was heavy user (of) heroin". The mother referred to an "asperger diagnosis". 29 On 20 November 2001, Ms Mitchell had a further interview with AL's mother regarding the "... safety concerns for (AL) at school" as he was "waving sharp objects" near a student at woodwork class and had "grabbed student by throat". At the Science class he was putting "staples in (his) arm" and was seen banging his head. Ms Mitchell again telephoned Mr Payland from Prince of Wales Adolescent Service regarding AL. Ms Mitchell also began to raise with the District Guidance Office through Ms Hromek as to a possible placement for AL in a special school - perhaps the Centennial Park High School. She also noted the possible placement of a Special Support Teacher/Behaviour for AL. 30 On 20 November 2001, Brian Cargill, Child and Youth Mental Health Service (Queensland) sent a facsimile to Ms Mitchell, attaching the following documents: · AL's WISC test results; · Letter from Dr Varghese, Child and Youth Mental Health Service - (Queensland) to Dr Chris Ryan re AL's psychiatric symptoms dated 8 June 2001; and · Letter from Dr Varghese, Child and Youth Mental Health Service (Queensland) to Dr Chris Ryan re AL's psychiatric history dated 22 June 2001. The results did not contain a diagnosis. Dr Varghees stated on 8 June 2001: In summary . . . (AL) presents as a lad with long standing complex developmental problems and a number of discreet psychiatric symptoms. His history would be consistent with a lad suffering from developmental immaturity ADHD, comorbid OCD and perhaps some over-sensitivities and secondary development of paranoid ideation, The problem with this hypothesis is that his mother states that he was relatively normal till age 11 and this would primarily go against a diagnosis of developmental or ADHD problems. If this is so then he is suffering from a fairly major psychiatric illness. The probabilities there would be a prodromal psychosis, a very atypical obsessive compulsive disorder or other difficulties with mood.

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On 22 June 2001, Dr Varghees noted Dr Ryan was to " . . . see him regarding his ADHD". 31 After contact from Ms Mitchell, Ms Hromek, at the Bondi District Guidance Office, made inquiries as to AL possibly qualifying for enrolment at either a school called Rivendell or Centennial Park. Both are special schools. Ms Hromek's notes reveal Rivendell required a psychiatric/clinical psychologist to assess/refer to case manage the student. For Centennial Park, Ms Hromek noted, a student needed an E.D. diagnosis and that the school's students were usually "emotionally disturbed". Another school, Edgeware, was suggested to her as a more appropriate placement. It was recommended AL's mother was to be approached to follow up with the necessary medical assessments. 32 On 21 November 2001, there was an intake meeting of District Guidance Officers for the Centennial Park High School (a special school for high school) and for Forrest House (the primary equivalent). This Committee met once a term to discuss students that need to be placed in special schools, possible vacancies and then determined the students to be placed and alternatively those who could be supported by a Special Support Teacher/Behaviour. Mr Severino, Assistant Principal Behaviour Team, District Guidance Office, was present at the meeting and he gave evidence of overhearing a conversation between two District Guidance Officers in which conversation AL was brought up as a student that "might come" to his attention. 33 On 22 November 2001, another Welfare Team Meeting was held at the school. The minutes of the meeting records AL as having "current and on-going contact with Ms Mitchell". There was a note recorded in the minutes of meeting from Ms Mitchell requesting "Please pass on any recent information regarding these students-academic, behaviour, social." AL was one of the ten named students who were being counselled by Ms Mitchell. 34 On 23 November 2001, the District Guidance Office in Cleveland Street referred the Guidance File to the Bondi District Guidance Office. It took 18 days for the District Guidance Office to refer it. 35 On 27 November 2001, AL's mother signed an application for a Special Teacher/Behaviour through a form entitled an "Access Request Form". It had still to be signed by the District Guidance Office, the school counsellor and the principal and needed an appropriate medical diagnosis. 36 By 3 December 2001, Ms Mitchell had received the District Guidance File, which she had requested from Glebe High School on 5 November 2001. It took nearly one month to reach her. The evidence was the Glebe High School counsellor, Mr Labone, had to send it to his District Guidance Office who then referred the file on to Ms Mitchell's District Guidance Office and only then on to Ms Mitchell. 37 Ms Mitchell prepared a Case Summary Report on AL on the same date. She outlined AL's history from the documents in the file as follows: · June 1997- Canterbury Child, Adolescent and family service · November 1997 AL - suspended for "lighting a fire in a bin" · November 1997 AL - suspended for 4 days for holding pen knife to the throat of a another student. · August 1999 - expelled for threatening to kill another student during a fight in class; · Term 4, 2000 - AL reports moving to Kepnock HS, suspended for 5 days - disrupting class by walking around and calling out, and stealing. Expelled for standing guard while his mate stole a mobile phone from a truck making a delivery to the school and for threatening to "bash" another student. · Term 4, 2001 - enrolled at DHHS, suspended for 1 day - throwing chalk at a teacher, excluded from metal work class due to dangerous behaviour. 38 It is necessary to recite fully Ms Mitchell's Case Summary on AL: CASE SUMMARY (AL) 25.4.86 LEARNING (INCLUDING IQ ASSESSMENT )

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Mr Severino said he would telephone Ms Scott, Special Support Teacher/Behaviour placement and ask for her approval. A school had to telephone the District Guidance Office to obtain approval for Mr Severino's services and Mr Severino was then required to complete paper work identifying urgent cases. 52 To summarise the knowledge of the school prior to the two incidents regarding AL was as follows: AL had enrolled in the school on 15 October 2001. By 25 October 2001, he had been suspended. His behaviour generally was, by 31 October 2001, of such concern that within the first two weeks of enrolment the Year 9 Co-ordinator, Ms Martin, called for assistance from the school counsellor, Ms Mitchell. The counsellor began her inquiries following Ms Martin's comment she had a "gut feeling" AL was "dangerous". By 5 November 2001, the counsellor had interviewed AL and taken a history of his previous schools in New South Wales. This history allowed Ms Mitchell to determine there would be held by the Department a District Guidance File on AL. She requested the file on 5 November 2001. The file would reveal the complete school counselling history of AL. However, while parts of the file reached the counsellor (for example, the medical assessment from Queensland were faxed to her immediately upon direct request) she did not get access to the District Guidance File until approximately 3 December 2001, nearly one month after her request. Upon receipt, that is on the same date, 3 December 2001, she immediately wrote a Case Study Report regarding AL. 53 In the meantime, as counsellor, Ms Mitchell re-interviewed AL, interviewed his mother and made inquiries as to alternative and/or support care available to the school to assist AL and to assist the school in managing AL as an identified student with behavioural problems. Many placement options were canvassed and the necessary support documents evidencing medical assessment were sought. Appointments were made with doctors and counsellors. On 27 November 2001, the mother of AL signed a request for a Special Support Teacher/Behaviour. 54 By 4 December 2001, the school completed the form and officially sought a Special Support Teacher/Behaviour to assist AL while at the school. At a meeting of the District Placement Committee, the application was considered and rejected but there was a determination to make further assessment as to AL's needs. This was the circumstance related to AL when the two incidents occurred. 55 No relief support had been granted when the following relevant two incidents occurred. Each incident is the basis for a charge under the OHS Act 2000.

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Incident on 10 December 2001 (Matter No IRC7028 of 2003) 56 On Monday 10 December 2001, Mr Calrow, the Deputy Principal, asked Mr Ambler, head science teacher to "have a look" in the playground at two students who were under the influence of alcohol. The two students (AL being one of them) were brought into the Deputy Principal's Office by Mr Ambler. After speaking to AL, Mr Calrow determined he was under the influence of "something". A 500ml Coca Cola bottle filled with a liquid was located in the playground and it was believed by Mr Calrow to have contained alcohol. AL became increasingly aggressive during the interview and on reaching over to grab the bottle had to be restrained by Mr Calrow and Mr Ambler. Another teacher, Mr Cotterill was asked to assist. On arrival, he found AL being held down by Mr Calrow and Mr Ambler. He said AL was "raging" but under control. Ms Broomhead, Principal of the school, was contacted and she asked that AL be moved from the area. Mr Ambler and Mr Cotterill each held one of AL's arms and they walked AL to the deputy principal's office and sat AL on the ground, each of them holding an arm while they awaited the arrival of police and ambulance officers. 57 Without warning, AL wrenched free the arm Mr Cotterill was holding and smashed his fist into his own face. Mr Cotterill regained control of AL. AL then smashed his head violently backwards into the brick wall behind him. During this time AL, according to one teacher, was raging and incoherent. 58 The school counsellor, Ms Mitchell, was contacted to provide AL with support. She later noted AL and another student were drinking a "½ bottle of "JB"". 59 In due course, an ambulance arrived and AL was taken by ambulance to Prince of Wales Hospital. The police arrived and were given details by Mr Calrow of what occurred. The police questioned AL whilst he was in the hospital and he was taken to the police station and questioned. 60 It is agreed Mr Calrow suffered an injury in applying a restraint to AL during this incident. Mr Calrow sustained a groin injury on 10 December 2001 as a result of having to physically restrain AL. Incident on 11 December 2001 61 On Tuesday 11 December 2001, Ms Mitchell rang Prince of Wales Hospital and also AL. She was at home but seeking to obtain help for AL after the 10 December incident had been reported to her. On that date, AL went back to the school. 62 Ms McInnes, Physical Education teacher recalls AL entered the staffroom at around 1:00pm, the start of lunch break, which at the time was shared by Ms Susan Martin, a Science Teacher and Year 9 Advisor, Mr Cass Linter, another Science Teacher and Mr Ambler, Head Science Teacher. AL asked for his hat which had been confiscated in a science class. AL told Ms McInnes, Ms Martin, Mr Linter and Mr Ambler that: he'd been expelled and he wanted to grab his gear and go.

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Ms Mitchell in preparation of a Suspension Report dated 18 December 2001 recommended that AL undergo full medical assessment. She collected all of the following documents: · Referral to IST (B&L) dated 12 December 1996; · Canterbury Public School, School Counsellor Report of Lesley Barr dated 10 March 1997; · WISC - III - Wechsler Intelligence Scale for Children date tested 3 March 1997; · Handwritten notes of interview by LA Barr - with AL's mother dated 26 May 1997; · Student details cover sheet dated 25 May 1997; · Handwritten notes of interview by LA Barr - with AL's mother dated 26 May 1997; · Report of Alison Harding, Speech Pathologist - Speech Pathology Department, Initial Assessment of Speech and Language - assessment dates 28 May and 3 June 1997; · Two pages of handwritten notes entitled "Problem" dated 18 September 1997 which included: · Handwritten notes by Lesley Barr dated 28 September 1997; · Handwritten notes by Lesley Barr dated 5 and 6 November 1997; · Handwritten notes of Lesley Barr dated 11 November 1997 · Canterbury Public School handwritten notes undated; · Handwritten notes of Lesley Barr dated 16 December 1997; · Handwritten file notes by Lesley Barr various dates 8, 12 March, 6 August, November 1999 and August 2000; · Letter from H Martin, Principal of Glebe High School, to AL's mother entitled "Short suspension report" dated 25 August 2000 · Handwritten notes of John Labone, Glebe High School, school counsellor dated 5 September 2000 · Facsimile from Amanda Gatti, Child & Adolescent Mental Health Service, Queensland Government to Glebe High School dated 18 June 2001 including: letter from Amanda Gatti to Glebe High School dated 15 June 2001, Consent to release/obtain information dated 15 June 2001. · Tables and graphics report of WISC III Testing dated 21 June 2001; · Letter from K Broomhead, principal of Dover Heights High School, to AL's aunt dated 26 October 2001; · Handwritten notes of Sue Martin to Tracey Mitchell, school counsellor at Dover Heights High School dated 31 October 2001; · Facsimile from John Labone, Glebe High School to Tracey Mitchell, school counsellor at Dover Heights High School dated 6 November 2001 including facsimile from Child and Youth Mental Health Service (Queensland) to Glebe High School , letter from Ms Amanda Gatti, psychologist Child and Youth Mental Health Service (Queensland) regarding AL dated 15 June 2001, consent to release/obtain information re AL dated 15 June 2001; · One page handwritten notes of Mr Labone dated 8 November 2001 with notation from J Kent to Ms Hromek dated 23 November 2001; · Six pages handwritten notes of Ms Mitchell dated 5, 13 and 20 November 2001 and 3 January 2001; · Facsimile from Mr Brian Cargill, Child and Youth Mental Health Service (Queensland) to Ms Mitchell dated 20 November 2001 including WISC - III test results, Communication assessment results conducted by Carol Swinburne, speech pathologist assessments dated 17, 18 and 19 June 2001; Report of John Varghees, visiting consultant psychiatrist Child and Youth Mental Health Service (Queensland) to Chris Ryan dated 22 June 2001; · One page handwritten notes by Ms Hromek dated November 2001; · Typed case summary of Tracy Mitchell dated 3 March 2001; · Facsimile from Tracy Mitchell to Robyn Hromek dated 3 March 2001, attaching a Disability Confirmation Sheet for AL dated 3 March 2001; · Seven Student Progress Reports regarding AL dated 4 December 2001; · Handwritten notes of Tracy Mitchell dated 4, 10, 11 and 13 December 2001; · Handwritten note of Robyn Hromek interview with Sharon Saad dated 5 December 2001; · Access Request Form dated 4 December 2001 and 3 December 2001 with Attachment 7 dated 6 December 2001 · Handwritten notes of Tracy Mitchell dated 3 December 2001; · Facsimile cover sheet to Cladia Vechhiato, psychologist, from Tracy Mitchell dated 13 December 2001.

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Legislation and Policies 82 The Department of Education, the School and the District Guidance Office, all arms of the defendant, had a number of systems in place at the time of the two incidents which systems are relevant to this consideration. These systems are defined through a reading of a number of documents. Firstly, the defendant had obligations to be met under the Education Act 1990. The Department also had in place four separate policy documents prepared to meet their obligations under the OHS Act as an employer: namely, the "Guidance for the Management of Serious Incidents"; and the OHS "Guide for the Principal" and "Hazpak . . . Basic Risk Management" and also the "Suspension and Expulsion of School Students Procedures". 83 Also of relevance is the school Discipline Policy and Procedures and the Department's Students Record file. Read with these procedures must be the procedures adopted by the District Guidance Office and implemented by the school counsellor which includes the keeping of a District Guidance File which records the associated procedures for dealing with and assessing a student with behavioural problems. It passed from school to school so it was a comprehensive record. The school also had an internal Welfare Committee and Disciplinary system and a Year 9 co-ordinator. Each liaised with the Welfare Committee and counsellor. 84 It is necessary to examine the defendant's statutory obligation, its policies and the implementation of those policies relevant to the schooling and assessment of AL. 85 The Legislative Requirements: 85.1 The Education Act 1990 Of relevance under this Act are ss4, 6 and 34. I will recite and deal with the effect of these provisions in the consideration at [174]. 85.2 The Occupational Health and Safety Act 2000 Of relevance to this consideration is ss8(1) and 107. I will recite and deal with the effect of these provisions in the consideration at [178]. 86 The Department's Policies The following were the four documented safety policies the Department had in place at the relevant time: 86.1 GUIDANCE FOR SCHOOLS AND TAFE NSW COLLEGES AND CAMPUSES Management of Serious Incidents NSW Department of Education and Training 2000

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87 The Department's Records 87.1 Student Records File This file contains generally a student's academic performance and generally follows a student to each new school. The file records marks achieved by the student but also other material, for example, on AL's file from Canterbury Boys High School, a suspension report was attached. The relevant file on AL indicates it followed AL from Dulwich Hill Public School to Canterbury Public School and then to Canterbury Boys High School. It appears to never to have reached his last school in NSW before he went to Queensland, namely, the Glebe High School. This file did not follow AL to the High School at any time during his enrolment from October to December 2001. 88 The Bondi District Guidance Office Within the Department there were District Guidance Officers called Guidance Officers under whom were employed the counsellors. Each school had a counsellor and that counsellor had a large support team at each District Guidance Office. At the Bondi District Guidance Office, the following support structure was in place: i) Teacher Welfare Officer , responsible for staff welfare and Occupational Health matters. ii) Special teacher placement officer , responsible for placement of students at special school. iii) Special teacher behaviour placement, responsible for special teacher support placement. iv) District Guidance Officer , responsible for school counsellors in the district. The school counsellor reported to this officer. Only the District Guidance Officer could approach appropriate person at district level. v) School counsellor - reports from school to District Guidance Officer vi) Assistant Principal Behaviour Team , in this case, had six itinerant support teacher behaviour staff who reported to him. vii) Support Teacher Behaviour Panel included District Guidance Officers Special education consultants, Senior Education Officer, representative Principals from Primary Schools and from Secondary schools, and the welfare consultant. vii) SSP Panel had the same representatives on the panel as Student Teacher Behaviour panel but different Principal representatives from the primary and secondary schools. The District Guidance Office records were: 88.1 The District Guidance File The District Guidance File is kept at the last school attended by the student. Its existence is recorded on a computer system called "TRIM". There is no access to the file unless called for through the School Counsellor or the District Guidance Office. However, once a student comes to the attention of the School Counsellor, he or she can search the "TRIM" system and retrieve a District Guidance File in existence and determine where it is located (which is usually at the last school the child attended). The request appears to be made by the counsellor direct to the school but access to it at least in this case was through the District Guidance Office. The request transfer is then recorded on the TRIM system and then forwarded on to the counsellor who made the request. The TRIM system had a record on AL and also had recorded upon it the request from Queensland for background on AL. The file keeps an individual record of all of a student's counselling history at every school. 88.2 The Serious Incident or Critical Incident Report Such a report was prepared by each school recording any identified "serious" or "critical" incident. It was sent to the District Guidance Office. It sometimes appears in the District Guidance File but this is not always so.

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The School Disciplinary System Relevantly within the school, there was a Disciplinary system in place: i) Principal delegates disciplinary power to Deputy Principal. Principal would issue red book if deemed to be more effective than pink book issued by Vice Principal. Received the minutes of the Welfare Committee meetings. ii) Deputy Principal : · Delegated responsibility for suspensions by Principal. · Pink book issued when student not suspended but needed checking on which is issued every morning and returned in the afternoon. The teachers would sign the book · Receives Contact Sheet reporting incident from teacher · Records on computer if suspension is determined · Principal sends letter to parent/guardian · Issued purple suspension book to AL. Student required on return to complete self assessment must make an appointment with the Principal at which the parent/guardian must be present. iii) Executive Committee consisted of Principal, Vice-Principal, 5 Head Teachers and was responsible for the day to day running of the school and the decision and policy making of the school. Anything affecting the school or a particular department were raised. iv) Welfare Committee's role was to look after the student's welfare, looked after the staff , followed departmental policy. If the committee had a concern about whether a particular student, for safety reasons, should remain in a class then there would be consultation with the Deputy and Principal. v) Welfare coordinator would meet with school counsellor, Ms Mitchell, to discuss as she could not attend the welfare meetings. vi) Year Advisor was responsible for coordinating issues for students in that year, could issue a monitoring book and could request to put out a Progress Report on student. vii) Year Advisor meetings is an open forum for discussion about students and attended by school counsellor, welfare team and year advisor. viii) Forum held twice a week for the whole staff in which issues could be discussed. ix) School Counsellor visiting SUBMISSIONS OF THE PROSECUTION 90 The prosecutor generally as to charges asserts the "risk" is that: there was a potential risk to a teacher of physical injury or psychological injury, or both, as a result of actual or threatened violence by AL, or having to restrain AL, at the school on 10 December and 11 December 2001. 91 Thus, Mr Docking submitted, the risk in these prosecutions of "actual or threatened violence by AL" includes: a) The risk of "student - staff" violence. b) The risk of "student - student" violence. c) The risk of self-harm. 92 Mr Docking submitted the risk was to the defendant's employed teachers at the school, particularly, Ronald George Calrow, Kenneth Charles Ambler, Melissa Jane McInnes and Lindsay John Cotterill. 93 The prosecution submitted the conduct of AL on each charge date is merely a manifestation of the general risk or, specifically, the risk pleaded in each of the charges (Crown in Right of State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 at [37]-[39]).

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THE RECORDS · The Student's Record AL's Student's Record File was relevantly held at Canterbury Boys' High. It did not follow AL to the school and had it gone, it would have assisted the school to assess AL quickly the prosecutor submitted. Relevantly it revealed: · the Canterbury school suspension letter dated 13 May 1999 which stated: … has been warned of possible suspension for over-aggressive behaviour; resulting in student being injured. · Letter dated 4 April 2000 which said: ... (AL) has been given a warning in regard to persistent disobedience and endangering the welfare of staff and students. … and ... has been suspended for repeated disobedience. · Suspension letter dated 24 May 2000 … has been suspended for graffiti on school property; physical violence and threats of further physical violence. · The Serious Incident or Critical Incident Report When such a report was created on AL, it was prepared by the school and faxed to the District Guidance Office, for example, the report of 10 November regarding AL's "Use of weapon against another student" and "held a Swiss Army Knife against . . . (student's) throat …" (Canterbury Public School). · The District Guidance File This file should have been made available before AL was allowed by the defendant to attend the school on 15 October 2001, the prosecutor submitted. The file contained notes from Ms Barr, District Guidance Officer, of his activities at Canterbury Public School. It records all intervention of the school counsellor with a student. While the file does not contain all of the disciplinary records it is the most important file for the principal to gain access the prosecutor submitted. Delay occurred as the file was not at the school. It took from 5 November 2001 until 3 December 2001 to arrive at the school. 95 The Prosecution submitted incidents recorded at Canterbury and Glebe were an indicator of a likelihood that AL could, at school, act aggressively and violently and also provided an indicator of the likelihood that AL had a mental health problem. 96 The prosecutor submitted the defendant held a record of AL's activities in the District Guidance File. It was sought by the school counsellor on 8 November 2001 but did not reach the school by 3 December 2001. Therefore, the school had it only one week before the charge dates. 97 As to the defendant's knowledge of AL's activities, it had four documents: · two summaries of AL's history. Aside from Ms Hromek's summary on the history in "Attachment 7 Access To A Behaviour Support Service Access Behaviour" it had the case study prepared by Ms Mitchell; and · the Progress Report prepared by AL's teachers on 6 December 2001, which recorded AL talked about killing quite frequently. [AL] just sat there and was drawing daggers on pieces of paper with blood dripping out of it, (noting the task did not ask for that type of art); looking at websites that did display knives, guns and explosives; sniffing paint & turps; pressing a scribe hard into his own face. Has been found trying to make knifes, ninja stars; a blade in his hand & was playing with it. Ms Mitchell also had notes of concern from Glebe High School of self mutilation; danger to self - others. · TRIM records revealed the involvement of the Child and Youth Mental Health Service (Queensland) and also revealed the boy's behaviour was of significant concern to his Queensland school. The Queensland reports indicated that AL previously acted in an unprovoked violent way.

[77]

Particulars 103 The prosecutor submitted each particular has its plain meaning and the objective circumstance that existed at the relevant charge date was AL attended the school as an enrolled, and not suspended or expelled, student. If AL was not allowed to be at the school or was prevented from being at the school, no risk to health and safety would have arisen. This objective circumstance was a: . . . substantial or significant cause [of the risk] viewed in a commonsense and practical way" ( Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 at [46]). Particular (a) Matter No IRC7028 of 2003 The defendant was in breach on 10 December 2001 for allowing AL to attend the school. Matter No IRC7029 of 2003 The defendant was in breach on 11 December 2001 for failing to prevent AL entering the school. 104 Mr Docking submitted examples of ways which would have ensured AL was not allowed to attend the school including: · Not enrolling AL at the school in Term 4. Reliance is placed on the words of Mr Petrohilos, then Acting Deputy Principal at the school who told Mr Ambler: ... At the time we were intending to curb our enrolment and didn't want to accept any more enrolments and he felt that he (Mr Petrohilos) was being pressured by (the) District Office. 105 Further, the prosecution submitted the option of not enrolling was allowed by the defendant's own Enrolment of Students in Government Schools: A Summary and Consolidation of Policy which allowed: · Placement of AL outside a mainstream school such as in Centennial Park, Edgeware or Rivendell. These schools assist in dealing with students with behavioural difficulties, including previous incidents of violence. · Placing AL in distance education with a home supervisor to organise his work following a curriculum. · Suspending AL, and impose a requirement he have a medical, psychological or psychiatric assessment prior to the suspension being lifted. · Suspending AL after the school knew he had "complex mental health issues".

[81]

The prosecutor submitted the evidence established: · the Department's system required the teachers to be informed (Guidelines for Schools and TAFE NSW Colleges and Campuses-Management of Serious Incidents 1.4 Appendix 1); · the system in place to handle a violent student lapsed; · information as to AL's violent past and present behaviour were recorded by the defendant but the employee were not informed; · there were neither general nor specific information of AL's history provided to the employees; · there was no identification of the potential risk; · there were no prevention or reduction strategies; · the welfare committee failed to co-ordinate their activities with that of the counsellor; · confidentiality issues hindered the performance of the defendant's obligations under OHS Act. Particular (e) in Matter Nos IRC7028 & 7029 of 2003 The defendant on 10 December 2001 & 11 December 2001 - failed to provide a security guard or security guards at the school 108 The prosecutor submitted this is not a general allegation rather it is practical precaution which should have been taken related to AL on each of the charge dates. Reliance is placed on Guidelines for Schools and TAFE NSW Colleges and Campuses-Management of Serious Incidents 2.13 Violence, for example, 2.0 Specific Serious Incidents "Security". By 3 December 2001, it was determined AL was MH3 and acting out behaviour included aggression so the precaution should have been taken by 10 December 2001. On 11 December 2001, the incident of 10 December 2001 required the precaution of guards be placed on all the school entries and the fact of the guard being in place on 12 December 2001, established the possibility the protection was available for the school. As to Particular (f) in Matter No IRC7029 of 2003 The defendant on 11 December 2001 - failed to have in place adequate communication mechanisms so that there was communicated to Mr Cotterill or Ms McInnes, or both, any emergency caused by AL or there was a need to move these teachers and their students to a safe place, or both. 109 The prosecutor submitted the following evidence satisfies this particular: · The Guidelines for Schools and TAFE NSW Colleges and Campuses-Management of Serious Incidents - 1.4 Incident Prevention at 2.13, under heading Response to Violent (incident) and in Section 3 - Serious Incident - Prevention) which requires a plan for action, and having initiatives and the relevant staff responsibility defined. There was no such plan in place. · The lower lowers was without communication of any kind and a number of relevant prevention measures were reasonably available such as walkie-talkies, mobile telephones, a duress alarm. 110 The prosecutor also relied on the evidence that due to the incident on 11 December 2001 the teachers suffered injuries (see agreed facts). Generally, the prosecutor submitted the gravity of the risk to safety arising from this breach of safety is reflected in the fact of these injuries. 111 The prosecutor submitted an adequate risk assessment required a cross-section of staff should be involved in an assessment and should not have been limited to the school counsellor or the District Guidance Office. 112 Objectively, the prosecutor submitted the risk did not vary and was not eliminated, prevented, minimised or reduced. The District Guidance File revealed there was no evidence AL had learnt the appropriate skills to manage his behaviour. There was a probability that violence could be student-to-student violence and a probability of AL being violent to a teacher. There was no evidence of any prior endeavour having a positive effect on AL's behaviour. 113 The prosecutor submitted to negate the proposition of the defendant that there was no urgency until after the progress reports had been received, it placed reliance on Ms Mitchell who had written "in urgent need of support" before the progress reports were sent out. Ms Mitchell's evidence was she was "trying desperately" by 3 December 2001 to get assistance. Generally, the prosecutor submitted, all the evidence established the Crown's case (R v Singh-Bal (1997) 92 A Crim R 397).

[83]

Prosecution's Submissions re Statutory Defence Section 28(a) Defence 115 In relation to the s 28(a) defence, the prosecutor conceded before and on both charge dates, the defendant employer had an established and a relatively detailed paper system in place for safe work practices. However, it submitted such policies were not sufficiently promulgated, enforced, implemented or maintained in practice at the school. Further the relevant workplace was not aware of the risk from AL nor the priority under the policies for a risk assessment to be conducted generally to identify hazards and put in place strategies to meet such hazards. No steps, measures or practicable precautions were in place regarding AL except that AL was placed in the class of a teacher other than the one at whom the chalk was thrown. The prosecutor submitted this was not sufficient to avoid risk. 116 Relevance is placed on the reasoning of the Full Bench O'Sullivan where a student's enrolment was organised at the defendant's District Guidance Office level and not according to the procedure laid down in the policy document of the defendant regarding enrolment. The prosecutor asserted a similar involvement of one of the defendant's District Guidance Offices occurred in the enrolment of AL at the school. 117 In the circumstances, applying the reasoning of the Full Bench in O'Sullivan, the prosecutor contends the evidence similarly establishes as there was failure to provide information relating to "documented violent behaviour" to the principal of the school at time of enrolment. The decision by Bondi District Guidance Office Special Teacher Placement Officer, Ms Scott, not to provide the services of a Special Support Teacher/Behaviour to the school on Friday 7 December 2001 is also relied upon. Further the failure by the school counsellor and principal not to release all information regarding AL to the teachers at the school was a failure. In such a circumstance, the s28 defence must fail the prosecutor submitted. 118 The statutory duty is to protect against all risks, if that is reasonably practicable (WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at [86] and "Foreseeability has no application to penal liability" (Kirk Group Holdings at [144]). The risk and its manifestations were neither freak occurrences which could not be explained nor which arose in an unknown situation, nor were they far-fetched or fanciful. The risks were all reasonably foreseeable, known and obvious it was submitted. 119 The prosecutor submitted based on objective facts in existence before the charge dates, it was a possibility, a real possibility, likelihood and a reasonable probability that there was a risk to the safety of the teachers at the school on the enrolment of AL. 120 The prosecutor submitted the defendant in its submission is misdirected in relying on evidence related to the incident and not the relevant risk. The nature and gravity of the risk to safety weighs heavily against the success of any defence raised by the defendant. The defendant knew of the history of AL and that there was the possible threat of violence by AL. 121 Further, the sustaining of injuries by the four employees, the prosecutor submitted, represents relevant evidence as to the existence of a risk to the health and safety of employees and the seriousness of that risk (Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 452). Potential violence was a hazard recognised by the Department in its system for safe working.

[87]

125 Further, the prosecutor submitted it is for the defendant to prove on the probabilities that AL was suspended on 11 December 2001 and that there was no further reasonably practicable option open to the defendant apart from suspension. The defendant has not done so the prosecutor contends. Other reasonable practical steps which should and could have been taken as proposed by the prosecutor and not implemented by the defendant include: · expelling AL from the school or the government school system. This did occur until 19 and 20 December 2001. · modification of the school's access points. · regulating or restricting visitors (here AL) visiting the school. · placement of a security guard(s) at the school. · informing emergency services, namely, the NSW Police in order to have the NSW Police remove AL when AL came onto or remained on the premises. · undertaking a risk assessment of the pleaded risk, which could have included taking into account AL's past history of actual violence, threatened violence, stealing, lighting fires and mental health issues. · making available to teachers the results in the Child and Youth Mental Health Service (Queensland) facsimile to Ms Mitchell of 13 pages, which included the results of the June 2001 full psychiatric assessment Child and Youth Mental Health Service (Queensland) and "Psychiatrist Report". · informing the employees and consulting them about the previous incidents of AL's actual or threatened violence at the school or at any of his past schools, or both, in order to identify the risk. 126 Post-incident measures or steps were introduced by the defendant specifically at the school and generally throughout the school system. These practical precautions could have been in place on each charge date in order to prevent, minimise or reduce the risk and its manifestations. The prosecutor submitted those steps included : a) the school calling the NSW Police. b) a static security guard for the school was booked for 11 December the following day. c) AL was suspended or expelled from the school on 19 December 2001. e) the principal of the school made a recommendation that AL be expelled from the defendant's system on 20 December 2001. f) Walkie talkies were introduced by 22 May 2002 and 5 June 2002. g) in 2002, mobile telephones, were made available. h) Mr Calrow, as Acting Principal, in about November 2002 refused enrolment to a female student after a suspension because of concern for the safety of staff. i) the preparation on 28 January 2004, of the "Prevention of Violence in Schools . . . Provision of Information to Staff of students with a history of violence. j) the Guidelines for Schools and TAFE NSW Colleges and Campuses: Management of Serious Incidents, was updated in March 2004, k) preparation of Suspension and Expulsion of School Students Procedures in 2004. The principal must now undertake a risk assessment if he or she believes the return of a suspended student will pose a risk to staff, students or other persons. l) the "Student Behaviour Handouts" were developed by the defendant, in 2005 which are a refinement of the risk assessment process of what is in A guide for the principal or manager (published in 1999).

[90]

Risk 130 The defendant submitted: · the particulars relied upon by the prosecutor are confined to the acts of a single person, namely, AL. · in Matter No IRC7028 of 2003 the breach is confined to 10 December 2001 incident and in the amended charge in Matter No IRC7029 of 2003, the breach is confined to the incident on 11 December 2001. · The risk is accepted by the defendant as that defined by the prosecutor namely the: potential risk to a teacher of physical injury or psychological injury, or both, as a result of actual or threatened violence by AL or having to restrain AL. · The defendant submitted the identified risk must be established from the evidence. Facts 131 The defendant submitted the evidence establishes the following facts: · as at December 2001 assessments were being conducted on AL in accordance with the Department's established systems and AL was able to attend the school; · having regard to his history and conduct, the evidence establishes the proper decision was that AL should receive the service of the Special Teacher Support/Behaviour team; · it was always preferable for a student to stay in a mainstream school given the associated difficulties which arise out of placement at a special school ; · the practice of the Department was to deal with students with behavioural problems in the mainstream school; · in a mainstream school, a student with behavioural disorders and a history of violence can be accommodated with appropriate assistance; · each of the special schools to which inquiries were made as to the placement of AL had their own criteria for placement; · only after the required assessments were made could the school counsellor and/or District Guidance Officer support a placement; · there was no urgency attached to the request for teacher support for AL; · the view only changed after the progress reports for AL dated 4 December 2001; · the school counsellor's view was AL was unlikely to harm the teaching staff at the school; · on 10 December 2001, the first incident, the evidence does not establish that AL acted in a violent way towards the teaching staff while AL was a drunken student he was simply trying to reclaim his bottle of drink; · it was not reasonably practicable for the defendant to take any further action in each of the particular circumstances revealed on the relevant dates.

[91]

The Risk Assessment 132 The defendant submitted: · the process whereby information was systematically collected, analysed and used as a basis for determining what was an appropriate response to AL's behaviour achieved the same outcome as that of securing safety; · the steps taken by Ms Mitchell and Ms Hromek and the additional steps taken by the Principal and the school Welfare Team added to the basic assessment as required in the Guidelines - Management of Serious Incidents. General Submissions 133 The defendant submitted any risk presented by AL was adequately addressed and considered by the defendant. 134 As to delay between the requests for the District Guidance File and the school receiving the file, such delay did not detract from the assessment processes which were being conducted, the defendant submitted. The issue of delay is not an act or omission that can be found in support of these charges as all of the information obtained before the arrival of the District Guidance File was sufficient to cause a request for Student Teacher-Behaviour support for AL. The Access Request Form was approved by AL's mother on 27 November 2001. 135 The defendant submitted, while stating the main focus was on the needs of the student, the effect of assessing and putting in place strategies for the student were designed to achieve safety for the student and others. 136 The defendant opined the issue for determination by the Court was whether the process undertaken by Ms Mitchell was an adequate assessment of AL. The evidence, the defendant submitted, supports the view that it was an adequate assessment. 137 The significant information about AL was found in the District Guidance File but this was not the only source of information available for a determination of his needs, the defendant submitted. A violent episode and the context in which it has arisen and the period of time between that and any other episodes is relevant to any assessment being made. For example, the incident in Canterbury Primary School in 1997 when AL was in year 6 and held a penknife to another student in the playground has to be seen in context. The gap in time before AL was suspended at Canterbury Boys High School is as relevant as the recorded incidents. AL's actions at the school, the defendant submitted, must be seen in the context that he was experiencing adolescence and there can be a difficult transition even for students who do not suffer from behavioural disorders. 138 The defendant asserted the process undertaken by Ms Mitchell was one of far greater complexity and thoroughness than any proposed under the risk assessment procedure relied upon by the prosecutor. The defendant submitted that the process undertaken by Ms Mitchell was reliable and predictive value than a simplistic matrix. Procedures, have a common failing, that is, they require a degree of prediction about the future and as such are not infallible. The veracity of the information provided then had to be assessed and would attract a reasonable time delay. 139 The defendant summarised thus: the information contained in the District Guidance File, the procedures and policies followed by the school counsellor, Ms Mitchell, supported by her supervisor at the Bondi District Guidance Office, Ms Hromek, were the equivalent of a risk assessment for and of AL and as such the issue of any risk presented by AL was adequately addressed and considered by the defendant in all of the circumstances. The fact that the information relating to AL's prior behaviour at the school came with the District Guidance File by 3 December 2001, and his prior school behaviour was comprehensively available on 4 December 2001 and on 4 December the Progress Reports were completed does not detract from the procedures followed nor did it alter any recommendation in the Access Report as signed off by all the relevant defendant personnel by 6 December 2001.

[100]

Defences - Section 28 (a) & (b) 155 The defendant submitted pursuant to s28(a)&(b), if the person charged can prove on the balance of probabilities that it was not reasonably practicable for the person to comply with the provision of OHS Act or if the commission of the offence was due to causes over which the person had no control and the happening of which it was impracticable to make provision then a defence is established. 156 The risk against which the defendant was to take all reasonable and practicable steps to ensure the safety of its employees was the risk of violence by AL. The 'risk' the defendant submitted is not a static risk. The risk associated with AL attending school (for example in 1998) was a different risk to him attending school in 1999 or 2001. In this regard AL was no different to other students whose conduct varies over the period of their school attendance. 157 The defendant submitted to determine the nature of the risk presented by AL it was necessary to have AL assessed by qualified persons at different points in time. This was done. While past behaviour can be used as a means of determining the probable behaviour pattern for the future predicting the future from past behaviour is imprecise at best. None of the past acts of AL could be regarded as a reliable indicator to the nature of his conduct on 11 December 2001. 158 The risk alleged as to AL's behaviour at school could be affected by outside influences without the defendant's knowledge. 159 The terms 'violence' and 'aggression' cover a wide spectrum of behaviour. The defendant submitted the prosecutor's use of a broad brush approach to the terms 'violence' and 'aggression' is prejudicial and inappropriate. The defendant submitted the steps required to discharge the statutory defence in relation to a student exhibiting the behaviours of AL up to 10 December 2001 are different. The degree and nature of the actions of AL on 11 December were so extreme that the likelihood of such an event was remote. 160 Reliance is placed by the defendant on the view expressed in Cleary Bros by Walton J, Vice-President who reviewed the application of the words "reasonably practicable" at [87]-[88]). 161 The policies put in place by the defendant were general in nature and it would be impracticable and costly to require the defendant to devise separate policies for each individual student such as AL. 162 Case law establishes the following propositions in relation to the defences the defendant submitted: · It is impracticable to take precautions against a danger which could not be known to be in existence: Shannon v Comalco Aluminium Ltd (1986) 19 IR 358; WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (1999) 101 IR 239; WorkCover Authority of NSW (Inspector Guillarte) v Peter John Genner & Anor [2000] NSWIRComm87; WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 380 - 381; WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd [1995] NSWIRComm 134. · It is not the specific detail of what occurred that must be foreseen but whether a risk of a certain class might happen and whether there is a practicable means of avoiding injury as a result: Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 at 126; Crown in the Right of NSW (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57.

[101]

The defendant conceded the history of AL revealed several violent and/or aggressive episodes over the period 1997 to 2001. Such it submitted is not sufficient to establish the proposition that the Department ought to have known of AL's behaviour on 10 and 11 December 2001. The previous episodes could not be held indicative of the level of violence exhibited by AL on 11 December 2001, the defendant submitted. 163 There was no evidence AL had ever previously presented at the school under the influence of alcohol or an illegal substance. On 10 December 2001, this behaviour (which was also indulged by another student) was not, nor could it be, reasonably predicted let alone expected the defendant submitted. 164 It was therefore not reasonably practicable for steps to be taken based on the possibility that a student might attend a school during some part of a day adversely affected by alcohol. The student was removed from the school when it was recognised he was affected. No assessments had been made of AL which predicted the behaviour of AL on either 10 or 11 December 2001, the defendant submitted. 165 Further, the defendant proposes the risk of the level of violence arising from AL's attendance at the school could not be reasonably known prior to 11 December 2001. 166 The defendant submitted case law establishes that the term 'reasonably practicable' means something narrower than physically possible. It is to be judged on the basis of what was known at the relevant time. There must be a balance between the likelihood of the risk occurring with the time, cost and trouble necessary to avert the risk: (Slivak & Anor v Lurgi (Aust) Pty Ltd (2001) 177 ALR 585). The critical aspect in these proceedings is not whether the defendant ought to have foreseen the fact that AL could be violent but rather whether the scale of violence was foreseeable at the relevant time (Cleary Bros). 167 It was not reasonably practicable for the defendant to have security guards at its premises on 10 and 11 December 2001. The assertion that the presence of guards on 11 December 2001 would have prevented the return of AL to the school should be rejected. 168 Given the history of AL and his behaviour at the school the assessment undertaken of AL was appropriate the defendant proposes. There was no failure on the part of the defendant in allowing AL to attend school on 10 December 2001. 169 As for 11 December, AL himself thought he had been expelled and after the events on 10 December the staff thought AL was suspended. The defendant could not foresee that AL would return on 11 December in the manner he did. AL was taken away by the police and the ambulance service on the afternoon of 10 December 2001. Further, AL had not attempted to return after his suspension for the chalk-throwing episode but served his suspension. 170 Therefore, the defendant submitted as at 10 and 11 December 2001, the defendant had in place a system of work that recognised the general risk of violence at the place of work and had in place processes and procedures for the assessment of risk and in place the measures/strategies to address the risk. 171 It was not, in all of the circumstances "reasonably practicable" at the relevant time to take the steps suggested by the Prosecution or to take any other steps than the ones undertaken on 10 and 11 December 2001, to avoid the risk of violence by AL to staff. 172 The defence under s28 is therefore established, the defendant submitted.

[103]

Ms Broomhead, Ms Scott and Ms Attwood were not summoned to attend Court. The prosecutor chose not to call Ms Broomhead, Ms Scott and Ms Attwood and the prosecutor can only be protected if a witness is unwilling or unreliable ( Kneebone at [51]-[53],[60], R v Newland (1997) 98 A Crim R 455 per Gleeson CJ at 461; Whitehorn at 664-665 per Deane J and at 674 - 675 per Dawson J). Consideration 174 In this consideration as to the liability of the defendant for the two charges brought against it arising from AL's behaviour while attending the school, it is first necessary to consider the effects of the relevant legislative provisions under the Education Act 1990 and the Occupational Health and Safety Act 2000 and the obligations therein placed on the defendant. A. THE EDUCATION ACT 1990 4 Principles on which this Act is based In enacting this Act, Parliament has had regard to the following principles: (a) every child has the right to receive an education, (b) ....... (c) it is the duty of the State to ensure that every child receives an education of the highest quality, . . . 6 Objects for administration of this Act or of education (1) It is the intention of Parliament that every person concerned in the administration of this Act or of education for children of school-age in New South Wales is to have regard (as far as is practicable or appropriate) to the following objects: (a) assisting each child to achieve his or her educational potential, (b) …., (c) ….., (d) provision of an education for children that gives them access to opportunities for further study, work or training, (e) mitigating educational disadvantages arising from the child's gender or from geographic, economic, social, cultural, lingual or other causes, (f) . . . (g) . . . (h) . . . (i) . . . (j) provision of opportunities to children with special abilities, (k) provision of special educational assistance to children with disabilities, (l) . . . (m) . . . (n) . . . . . . 34 Admission to government schools (1) The parent of a child may enrol the child at any government school if the child is eligible to attend the school and the school can accommodate the child. (2) A child is, in any case, entitled to be enrolled at the government school that is designated for the intake area within which the child's home is situated and that the child is eligible to attend. . . . 175 The definitions contained in s3 of the Education Act 1990 include the following definition: compulsory school-age means any age of or above 6 years and below 15 years.

[107]

The Effect of the Two Statutory Obligations 181 The defendant asserted there is a conflict between its statutory obligations, namely its obligation to educate under the Education Act 1990 and its obligation to ensure a teacher's safety under the OHS Act. In some circumstances it asserted a conflict arises between these two obligations. 182 There has been some judicial consideration of this proposition. Staunton J in WorkCover Authority (NSW) (Inspector Stewart) v Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 (at 227) examined circumstances when it was asserted there were conflicting duties under two Acts. Her Honour placed reliance on the view expressed by Schmidt J in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245. Staunton J stated: [45] In the course of considering submissions in this matter her Honour considered the particular submission, placed on behalf of the defendant, that the defendant had to meet its competing obligations in relation to the potential for patients to be involved in violent assaults upon staff and its obligations under the Occupational Health and Safety Act against those that the defendant owed to patients under the Mental Health Act . Her Honour noted the difficulty that posed for the defendant in balancing those competing obligations (par 84). Nevertheless, her Honour was quite clear as to where the ultimate determination of that balance quite properly lay in the following comments that appear in pars 89 and 90 of her Honour's judgment: Empathy, care and even pity for such patients are, however, not a proper basis upon which employees may be permitted to place themselves into danger. There can be no doubt that in a situation where the choices facing the defendant are physical intervention in order to ensure that a patient is restrained from hurting others and a risk to the health, welfare or safety of employees, if such steps are not taken, the absolute obligations imposed upon the defendant by s15 of the Act, require that safety of employees be preferred. No matter how dedicated to patient welfare a nurse or other employee might be, it is inconsistent with the requirements of the Act, that the defendant permit them to be the subject of physical assault, or indeed repeated physical assault, by patients who are not restrained from harming others. Employment on such a basis is not permitted by the Act. [46] The factual circumstances in the matter before me are not on all fours with the situation confronting her Honour. Nevertheless, the underlying competing obligations remain. The views expressed by her Honour on where an employer's primary obligations lie when that balance demands competing considerations are, I believe, correct. They must come down on the side of the best interests of the employees in providing them with a safe place of work. 183 The defendant submitted the obligations it must meet under the Education Act 1990: . . . provide a criteria not necessarily existent or relevant to other industries . . .

[108]

The obligation under the Education Act 1990, in combination with the community expectation for the provision of education, does not in my view render in any way the provisions of the OHS Act to be of less force in the education sector than in other industries. I do not accept that the obligation to educate, read together with the absolute obligation under the OHS Act to provide safe working, provide a criteria not necessarily existent or relevant to other industries. 184 It was submitted when there are competing considerations, there is conflict as to what is the preferred obligation (see Central Area Health Services). I do not accept where there are concurrent obligations that safe working should be perceived as the "preferred" obligation. 185 There must be a balancing of the absolute obligation imposed by the OHS Act to provide safe working with the obligation to educate under the Education Act 1990. Read together, on the facts before me, while the student had a right to an education from the defendant, the defendant, as an employer, had also an obligation to provide a safe working environment for its teachers. In the circumstance his attendance at the school did not create a competing obligation to the defendant's obligation to provide a safe working environment. The obligations were concurrent obligations not obligations in conflict or in competition. The defendant's own policies revealed the balancing of both obligations was given consideration in its policy formulation. The policies provided a range of alternative ways to accommodate the individual student with behavioural problems so that the defendant could comply with its obligation to provide an education for those students with behavioural problems. The policy allowed for a risk assessment of such a student to ensure strategies were developed to allow for that student's education within a safe work environment for its teachers. 186 At issue therefore is whether these charges establish there was a failure by the defendant to ensure the health, safety and welfare of the relevant teachers given AL had a right to an education in New South Wales. Risk 187 It is the risk to the health, safety and welfare of the employees which triggers the operations of s8(1) of the OHS Act under which these charges are laid. The defendant asserted much of what has been proposed by the prosecutor for safe working for teachers in a circumstance where a student has behavioural problems involves the transfer of risk not the elimination, control or minimisation of risk. The "transfer of risk" the defendant asserted would mean the exposure to a new and different group (presumably the specialist teachers) to the risk. 188 An employer must be proactive to ensure the elimination of risk from its workplace. In the decision of Maurice O'Sullivan v Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361, Walton J, Vice-President, considered liability in a charge where it was asserted the defendant failed to ensure the safety of a teacher's aide at a special purpose school for children with physical, intellectual or psychological disabilities (which precluded them from attending a normal school) in circumstances where the teacher was left alone with the students on a day without any support. The Full Bench on appeal in O'Sullivan while discussing a similar pleading under s15(1) of the Occupational Health and Safety Act 1983 stated: [ 41] It must be kept squarely in mind that the risk here pleaded was the risk of employees, in particular Mrs Griffiths, being assaulted on 9 February 1999 by students demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. This was the relevant risk identified by Walton J and the appellant accepted that this was the risk but not one created by, or under the control of, the appellant. [42] The fact that a risk was not created by, or under the control of, a defendant is not to the point. Many prosecutions under the Occupational Health and Safety Act involve risks not created by the defendant. The defendant's obligation under s 15(1) of the Act is to ensure the safety of employees. That may be done by eliminating, or preventing or minimising exposure to, any risk however it may have come about or, given the defence of reasonable practicability, by taking all reasonably practicable steps to ensure employees are not exposed to the risk. … [45] Causation has to be viewed in a common sense and practical way. What has to be considered in this case, given the way the charges are framed, is whether the appellant's acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when the employee or employees were exposed to the risk. A risk might be quiescent and the measures in place to prevent exposure to the risk may be adequate but that may change because the acts or omissions of the defendant caused this to be so; the risk to health and safety may increase or become more serious as a consequence of the appellant's acts or omissions. [46] It is an untenable proposition that although a defendant was aware of a risk to health and safety it had not itself created and had taken steps to avoid employees being exposed to that risk that it, nevertheless, should not be held liable if the risk increases and the defendant did not take steps commensurate with that heightened risk to prevent harm to employees. . . . where its acts or omissions led to a heightened risk of assault on a particular day in particular circumstances (if that be the case), it is not liable because the risk of assault by violent and unpredictable students was pre-existing and not of its making. … [49] In our opinion, if on an assessment of the objective facts a defendant is shown beyond reasonable doubt to have failed to ensure the health and safety of employees, and that failure was a substantial or significant cause of the risk of assault, such risk to be assessed at the time of exposure to it, or the failure materially contributed to that risk, then the causal connection is made out. [50] In Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33, Boland J found that in considering whether a causal nexus exists it is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way": see Cahill . We consider his Honour was correct in that view. 189 The risk as identified by the prosecutor in this prosecution was that recited in Particular (2) of the Application for Order, namely, on each of 10 and 11 December 2001: There was a potential risk to a teacher of physical injury or psychological injury, or both, as a result of the actual or threatened violence by AL or having to restrain AL.

[109]

It is here necessary to reiterate the charges in their terms are directed to the risk to the safety of teachers. The defendant made much in submissions as to the risk of actual or threatened violence by AL including the risk of student-staff violence; student-student violence and the risk of self-harm. However, the terms of the charges relate to the risk to the safety of the teachers and that is the limitation of the alleged risk. The section under which the charges are brought, s8(1) of the OHS Act, addresses the obligations in the employer/employee relationships. The charges therefore relate to the student-staff risk only. 190 Before considering the Particulars specifically pleaded to establish each charge, a number of general observations related to the application of the relevant principles are necessary. The facts have been established but there was much dispute between the prosecutor and defendant as to how those facts should be perceived. The parties advance a different perspective on how the court would perceive for example the implementation of the systems of work which were in place and which were activated after the enrolment of AL. Other general issues were in dispute such as the effect of the confidentiality policy on the need to inform the principal and teachers at the school of the history of a student with behavioural problems: the way to identify the risk posed by AL and the associated appropriate reduction strategies. The Systems 191 Given there were a number of systems in place and implemented following the attendance of AL at the school, it is necessary to assess the effectiveness of these systems given the effective or ineffective implementation on the two days relevant to the charges. The defendant had to first recognise and then take steps to prevent any risk posed by the enrolment of AL at the school. 192 The principles applicable to an application of a proper system of work were enunciated in Menzies Property Services where the Full Bench stated: [67] The . . . discussion of paper systems in WorkCover Authority (NSW) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at [35] is pertinent: "The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its ''paper systems'' are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) v Abigroup Contractors Pty Ltd (2000) 99 IR 196. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In WorkCover Authority (NSW) v Supercoat Feeds Pty Limited (unreported, Industrial Relations Commission, NSW, Fisher P Matter No CT96/1020, 22 April 1997) for example, Fisher P said: 'The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work.' Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant." See also WorkCover Authority (NSW) v Kirk Group Holdings Pty Limited and Anor ( 2004) 135 IR 166. 193 Further, delegation does not satisfy the defendant's duty under OHS Act. In Fletcher Constructions the Full Bench stated at [101]: [101] . . . Where an employer has established, maintained, and promulgated a relatively detailed system of safe work practices, it becomes meaningful to consider whether that employer has done all that is reasonably practicable. The highest that the respondent could put its "system" in this case was to say that it had delegated establishment and implementation of safe work procedures to the unmonitored discretion of a responsible individual: a unpersuasive argument . . . The establishment of the offences . . . which included a failure to provide a safe system of work, was not challenged . . .. The very establishment of an offence assumes a causal nexus between the conduct of the respondent and the consequent risk to the health, safety and welfare of its employees: see Kellogg at 253. 194 Under the paper systems adopted by the defendant, some of the responsibilities fell to the school and its Committees and some to their District Guidance Offices. However, a defendant cannot delegate its obligations under the OHS Act. The defendant had a non-delegable obligation to ensure safe working at the school. It could then raise the defence after a breach is found of reasonable practicability. As an employer it carries the most serious of obligations - some have called it an "absolute" obligation - to ensure the provision of a safe workplace for its employees under the OHS Act. 195 The application of the defendant's policies which were in place to ensure safe working is best examined through the facts as established. 196 After AL's enrolment, he adopted a pattern of behaviour over the eight weeks in which he attended the school which caused the school such concern that by the second week, a teacher had notified the school counsellor of the need for an investigation into his school and domestic history. The school counsellor began to follow the procedures set in place by the defendant (through the procedures of its District Guidance Office) to determine the past history of the student in NSW for the purpose of identifying his needs both behavioural and educational and then to determine the possible supports necessary to assist in the aim of the school to educate AL. 197 However, the systems in place in their implementation did not deliver the appropriate support to AL or the school before the two incidents, the focus of these charges occurred which incidents placed the relevant teachers at a risk to their health and to their safety. That risk became a reality when arising from the two incidents four teachers suffered injury. 198 The paper systems were generally implemented with great rigor by the teachers including, particularly, the Year 9 Co-ordinator, the active school Welfare Committee and the most professional of school counsellors. They conducted an assessment of AL's educational and behavioural needs. The counsellor co-ordinated the inquiries through her District Guidance Office. It was determined to seek a Special Support Teacher/Behaviour for AL and obtain a medical assessment of AL to determine his need for an alternative placement. All these endeavours were focused on the needs of AL. 199 However, the focus of any inquiry under the OHS Act must be on whether the defendant, in assessing AL's education and social needs also identified AL as a risk to the health and safety of the teachers given his attendance at the school and, if such a risk was identified, whether the defendant put in place the appropriate protections for the safe working of its teachers.

[110]

200 I do not see in this inquiry a conflict or dilemma in what the defendant suggests were competing obligations. The defendant's own system of work required an assessment for safe working once a student is recognised as "violent" or a "hazard". The defendant had in its policy risk identification and then strategies. It had available a range of reduction strategies and the ultimate safeguard against an identified violent student, risk assessed as a "hazard", namely, expulsion. 201 Under the OHS Act, particularly s8(1) under which these charges are laid, the defendant had to ensure its premises were safe and without risk; ensure the systems of work and the working environment of the employees were safe and without risk; ensure the employees were provided with the necessary information, instruction training and supervision to ensure their health and safety at work. Such duties "without limitation" have been entitled the "primary" and "specific" obligations of an employer. The obligations are absolute. Therefore under the OHS Act, the defendant had to ensure the named teachers were safe at their place of work on the relevant days which place of work was the school at which they taught. The defendant had control over those premises, that is, the school. The proposition that the defendant had control over the school but did not have control over the behaviour of AL or his actions cannot be used to distract from the obligation of an employer to protect against risk (see primary judgment in O'Sullivan). 202 After the first "chalk throwing" incident, the disciplinarian at the school, the Deputy Principal, implemented the school disciplinary policy and ordered AL's suspension. Then under the school's social and educational structure the Year 9 Co-ordinator was activated when a teacher expressed concern to her as to AL's behaviour. The Year 9 Co-ordinator went to the school counsellor. The system of the District Guidance Office for assessment was then activated. The counsellor interviewed the student, AL, about whom she received the expressions of concern and set in train the procedures of the District Guidance Office for access to its Guidance File kept on AL. She contacted AL's mother and set in train procedures to obtain a professional medical assessment of AL. The School Welfare Committee recognised the need for AL to be "monitored" noting his behaviour was of concern. 203 The co-joining of the school and counselling systems worked well to that point. However, in its implementation the District Guidance Office system met with difficulties. First, the District Guidance Offices took nearly a month to forward the Guidance file to the school which file contained AL's history. Secondly, and this is no criticism of the individual and most professional of school counsellor, but she only attended the school one day a week. Given the serious concerns raised as to AL's conduct it is difficult to accept that the one day a week attendance of the school counsellor was ideal. Evidence revealed she did an amount of work for AL when not at the school. The counsellor, after she finally prepared her assessment, was undoubtedly frustrated because the District Guidance Office policy and procedures required that for a special placement, AL had to have medical assessments. There did not appear to be an avenue available within the system for a speedy medical assessment. There was then a further delay, notwithstanding the counsellor's superior determined from the Queensland medicals to make a diagnosis to persuade the Ad Hoc Committee determining special placements of AL's urgent need. They rejected the application but agreed to come and further assess AL. Delay 204 Delay in the implementation of the various systems activated is at the heart of this breach. I accept there were comprehensive systems put in place by the defendant related to a student's welfare and educational needs, but the delay in the implementation of these systems became a critical element in those inquiries. There was delay in forwarding the District Guidance File. There was delay in obtaining an appointment for a medical diagnosis. There was delay in gaining all the signatures and documentation necessary for an application for a Special Support Teacher/Behaviour. There was delay in the District Guidance Office accepting or considering the Special Support Teacher/Behaviour application. All such delays in the implementation of the defendant's systems contributed to the fact that by the date of the two incidents the 10 and 11 December 2001, there was no Special Support Teacher/Behaviour in place at the school to support AL. 205 Such delays were acts of persons implementing the defendant's systems of work in the assessment of a student with need. While criticism should not be directed to individuals in the employ of the defendant such as Ms Mitchell who acted with extraordinary professionalism and determination in her pursuit of the history of AL and her efforts to obtain both medical and behavioural support for AL, the same cannot be said for the system in place for access to the District Guidance file, medical appointment and special placement. The bureaucratic delay in the release of the District Guidance File through the various District Guidance Offices and the delay in the decision-making at District level to determine the allocation of any of the possible alternatives for support for AL caused a significant increase in the risk. Bureaucratic obstruction comes to mind as a description, after my examination of these procedures, with a focus on delivering a service in the interests of AL and interests of the teachers at the school. 206 It took 24 days for the District Guidance file to reach the school. It took from 5 November 2001 until 3 December 2001 for the District Guidance File to be examined at the school. The system in operation at the time revealed Ms Mitchell sought the file from Mr Labone, the school counsellor of Glebe High School. He sent it to his District Guidance Office to refer it and there it was delayed. In the implementation of this step in the defendant's policy there was frustration. A Disability Confirmation Sheet was needed to support an application for any of the alternative supports or placements. It had to be completed by the counsellor, Ms Mitchell, and Ms Hromek. Yet the District Guidance Office could not assist by a speedy medical appointment for the required diagnosis of AL's condition. Ms Hromek had to determine to take matters into her own hands and entered a diagnosis from the "possible" diagnosis as outlined in the Queensland psychiatric assessment when she understood the urgency for special support. She should be praised for her decision-making skill. The delay in implementing the system which required a psychiatrist assessment and where the need became urgent was here revealed. The school, after receipt of the medicals so efficiently despatched from Queensland (in comparison with the delay to send the District Guidance File in NSW) and after receipt of the District Guidance File, through the school counsellor, immediately prepared a Case Summary and requested a Progress Report be prepared by AL's teachers revealing AL's serious needs. Their preparation allowed for AL's case to be considered for a Special Support Teacher/Behaviour for AL at the Ad Hoc Committee meeting. The meeting of the Committee was held on Friday 7 December 2001 but it did not adopt the recommendation for a Special Support Teacher/Behaviour. However, given the expressed concern of Ms Hromek, the Committee determined to further investigate AL.

[111]

207 On the following Monday 10 December 2001 the first incident occurred. 208 The delay exposed in the implementation of the systems in place for an assessment of a student with behavioural problem reveal a thorough but most bureaucratic structure was in place. The system of assessment was not able to meet the identified and urgent problem that AL presented to the school and it teachers. Violence 209 The prosecutor, in both its conduct of the case and in submission, placed much emphasis on the defendant's guidelines for the management of serious incidents. Those guidelines recognise the need to protect all in the school environment and specifically to protect against violence directed towards the teachers. The policy required the establishment of a Serious Incidents Committee under clause 1.2 of the Guidelines for Schools and TAFE NSW Colleges and Campuses - Management of Serious Incidents and defined a particular risk assessment to identify possible hazards both physical and psychological. In this endeavour, the Hazpak guide also would help. This Committee under the policy should have liaised with the OHS Committee (1.2.1). In the management of violent incidents the policies recognised the possibility of violent behaviour in the use of weapons, use of illegal substances, physical violence towards staff and unauthorised entry. Such behaviour, once recognised, had to then be addressed with strategies for the elimination of the risk. 210 The school did not have a Serious Incident Committee/OHS Committee and evidence revealed there was little staff awareness of the need for a risk assessment of this workplace. Under the defendant's two relevant guidelines, the Principal of the school was required to ensure at least one such a Committee was established. There cannot however be a passing off onto the Principal of the Department's obligation to ensure safe working for its teachers. There should have been a Serious Incidents Committee/OHS Committee at the school. Such a Committee should have been conducting regular meetings to identify risks. The evidence established the school counsellor co-ordinated her activities with the school Welfare Committee and the class co-ordinators. They served the school very well in identifying AL as having a behavioural problem and assisted in his assessment. Within two weeks the Year 9 Co-ordinator identified AL as having a behavioural problem and flagged the initial concern as to not only his behaviour but the inherent possibility AL could be "dangerous". Within three weeks the Welfare Committee marked AL's behaviour of "concern" and determined "to monitor" him. The school counsellor Ms Mitchell began her inquiries within four days of reading the notification of teachers concern (that is next day she was rostered on at the school). She interviewed AL, recognised from his history there would be a District Guidance File in existence and requested it immediately. 211 The defendant submitted therefore there was a comprehensive risk assessment carried out on AL. It also submitted the decision to seek the allocation of a Special Support Teacher/Behaviour, which all teachers supported as a strategy, was the one which should have been implemented. 212 However, it is the purpose for which the assessment was carried out and the purpose of the proposed appointment of a Special Support Teacher/Behaviour which reveals by its nature its limitation. The assessment or proposed placement was not focused by the employer on ensuring a safe working environment for its teachers. There was no assessment conducted for the safe working of the teachers as a result of AL's attendance at the school. Nor should the assessments which were performed have had that focus.

[112]

213 All teachers who played a part in assessing AL were most professional. One could from this pattern of efficiency infer that the assessment would have been referred to any OHS Safety Committee had a Serious Incidents Commitee/OHS Committee been in existence - in accordance with the defendant's policy, it would have quickly focussed, given AL's history, on the potential of AL to perpetrate violence against staff. Such a committee may well have supported the decision for a Special Support Teacher/Behaviour after consultation with all teachers involved. The appointment of a Special Support Teacher/Behaviour would have given the necessary focus arising from the risk assessment, namely, a recognition of the risk AL posed to safety and an expressed concern for the safety of staff. That Special Support Teacher/Behaviour would have been made aware of the history of AL and as I have accepted his potential to behave violently he/she would have been required, in co-ordination with the Serious Incidents Committee/OHS Committee, to have appropriate strategies in place if or when a violent espisode occurred (as was identified by Ms Mitchell). Such strategies would have been focused on ensuring safety in any dealings with AL. This did not occur because no such Committee existed and the focus of all inquiries regarding AL was on his needs. 214 Given there was no Serious Incidents Committee/OHS Committee active in the school in accordance with the Department's policy, there was a crucial element missing in the implementation of the comprehensive range of systems the defendant had in place. I accept it would have been difficult for the Serious Incidents Committee/OHS Committee to have conducted the assessment with the thoroughness of the Counsellor to identify AL's needs. However, once the case study and progress reports were to hand they would, I have no doubt, have gone to a Serious Incidents Committee/OHS Committee and, as with the Welfare Committee and the Year 9 Co-ordinator, it would have been inevitable that the Committee under its terms would have addressed strategies for the reduction of the identified risk that was AL. 215 The focus of such a Serious Incidents Committee/OHS Committee would have been more on the safety of staff (and students). This re-focus on the same facts would have recognised the need to ensure a safe working environment given the enrolment of AL. I am persuaded the Serious Incidents Committee/OHS Committee would have needed the background work done by the counsellor as reflected in the case study and progress reports in order to make their deliberations. I do not accept the proposition that all reports related to AL should go to all the staff. This is a matter where common sense must prevail. The work of a Serious Incidents Committee/OHS Committee would have been co-ordinated through Ms Mitchell to work along with the other relevant school bodies and it is my view, given the practice of Ms Mitchell, it would have been kept well informed. Therefore from 3 December 2001 and certainly by 6 December 2001 if not from the day the Year 9 co-ordinator instinctively labelled AL possibly "dangerous" the Serious Incidents Committee/OHS Committee would have had an opportunity to assess the level of risk posed by AL's enrolment and time to consider appropriate strategies. Special Support Teacher/Behaviour 216 As at 3 December 2001, a week before the date of the first incident it was considered appropriate by Ms Mitchell, Ms Hromek and Ms Broomhead (the Principal) to press forward with the Special Support Teacher/Behaviour as the preferred option for support for AL. On the evidence of all teachers a "special" school placement was seen as a last resort. Even if a student exhibited a pattern indicating behavioural problems, including acts of violence, the preferred option was to retain the student in a mainstream school. All witnesses agreed that it is preferable to keep a student within the mainstream school system rather than send a student to a special school.

[114]

Further, Mr Stonehouse, the defendant's witness stated: Q. Is there is any advantage so far as the treatment of individual students is concerned in maintaining them in the mainstream school, if that is possible? A. I think there is a tremendous desirability to maintain students in mainstream, yes. 218 Ms Mitchell was not questioned by either Mr Docking or Mr Hodgkinson whether a mainstream school is a preferred option even when a student has shown violent behaviour. However Ms Mitchell stated: Q At any time prior to 10 December did you form the view that [AL] posed a threat to the teaching staff? A. My memory is that these people act very quickly and as this information such as the progress reports and more verbal information came in from various teaching staff, the situation was quickly becoming more serious and we were seeking placement outside the mainstream school, with regard to safety issues so I would have to say that we were certainly concerned about [AL]'s safety at school, the safety of other students at school, and that is what I have submitted in one of these applications as well. That was a concern. Ms Hromek was also not directly questioned by either Mr Docking or Mr Hodgkinson but stated: Q. And there are many people within the school community, and I am now confining myself to students that suffer from levels of mental health problems? A. Undoubtedly. Q. And, but are able to deal with schooling at the ordinary or general level by virtue of the treatment they receive? A. For some students this is successful and for others it isn't. But undoubtedly there are students out there you would be aware of people who are in the school community and other regular schools who otherwise have mental problems, but are treatable. They are for the minimal problems that have more success in schools . . . . Q. And that's a factor that you had regard to? A. I think in answer, what we need to do when we are looking for a student's placement is to look to the least restrictive environment. Perhaps that helps to answer your question. Q. I just wanted you to explain what you meant by this reference "student's placement is to look to the least restrictive environment"? A. Yes, in order to provide proper intervention and support to students we need make sure that we're not putting them, for example in a special education class which is a more restrictive environment when they can actually be managed in a main-stream support setting. The Support Teacher/Behaviour Program is an example of a less restrictive environment compared to a special unit. 219 By 3 December 2001, the defendant was aware of the risk to safety created by AL's behaviour. He had been removed from one class (the woodwork class), suspended from the school and exhibited threatening behaviour. His history was now known. The school had a comprehensive understanding of his domestic situation, medical status and had by 3 December 2001, the counsellor and teacher review in the form of the case study and progress report examining AL's behaviour generally. 220 The defendant concedes the need for support for AL changed on receipt of the progress report prepared by his teachers. Ms Martin in her case study also identified AL's "dangerous" behaviour stating he "scared" other students. Ms Hromek had marked her e-mail to Ms Scott with the enclosed Application for a Special Support Teacher/Behaviour to the Ad Hoc Meeting as "Urgent" on 6 December 2001. Relevantly by 3 December 2001, after the full picture of AL's behavioural pattern had emerged, the Serious Incident Committee/OHS Committee, with such a thorough and professional assessment of AL as collated at the school, could identify him as a risk to safety - then potentially a "violent" risk, - such as to activate any from a choice of the policy strategies for managing such an identified risk. 221 The systems I find were comprehensive but in the delay in their implementation coinciding with the failure to activate one element of the comprehensive system, namely, the Serious Incident/Safety Committee, there were serious acts of commission and omission on the part of the defendant which were causally connected to the identified risk to the safety of its employees. Confidentiality 222 In the system of work in place the notes of a counsellor collated through the District Guidance File were, at the relevant time, marked "confidential". A release of the information contained therein to other teachers was considered a breach of the assurance of confidentiality given to the student. It was asserted by the defendant that to make the information available generally to all teachers would be a breach of the guarantee of confidentiality and potentially damaging to the student. 223 Whether there is a need for the Principal to have access to such a District Guidance File at the time of the enrolment of a student is not an issue before me given the effect of s107 of the OHS Act. However, the issue of confidentiality and access to the information as contained in the District Guidance File especially as related to a past history of violent behaviour by a student is relevant to the consideration of safe working and this matter does raise the question as to who, when, where and how such information related to a student's past history should be released. It was receipt of the District Guidance File and AL's activity at the school which triggered the urgent activity on the part of the counsellor. 224 The inquiry conducted into AL revealed that a sensible professional such as Ms Mitchell could, within the guidelines, co-ordinate her concerns and convey information. While the system as to confidentiality and the need for access could be reviewed as part of the "living policy" of the defendant -putting aside a Principal's need at the time of a student's enrolment for information as to whether a District Guidance File existed and/or information of its contents - there is also a need to identify how and what information is conveyed to an active Serious Incidents Committee/OHS Committee and Welfare Committee. 225 Nonetheless, Ms Mitchell co-ordinated her work with the activities of the Welfare Committee and the Year 9 Co-ordinator in the preparation of the Case Study and Progress Report which were efficiently and effectively prepared without any breach of the confidentiality rule. The confidentiality policy I find did not trammel the assessment of AL. 226 Delay in implementing the steps in the system was the most significant contributing factor in the assessment of AL along with the failure of the school to establish an essential link in the defendant's policy structure, namely, the need for a Safety/Incident Committee so the focus, the analysis, of the assessment could also be on staff safety. The Particulars of the alleged breach 227 The burden of proof lies with the prosecutor to establish the necessary connection between the particularised failures of the defendant and the consequent risk that arose or remained as a result of those failures. As the Walton J, Vice President stated in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 (at 242): . . . It is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees: see McMartin ; Drake (at 449); Cullen (at 209); Dawson (at 120-121); Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 (at 156-157); and Kirkby (at 49-50). There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: see WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 at 377. . . . However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety. . . . 228 The acts or omissions of the defendant relied upon by the prosecutor to establish each breach of the OHS Act were: allowing AL to attend the school as a student on each of the days that an incident occurred, namely, 10 and 11 December 2001; failing to undertake an adequate risk assessment in relation to the potential risk occurring due to AL attending the school; failing to ensure there was available a complete medical, psychological and psychiatric assessment of AL; failing to inform the teachers of present and past actual or threatened acts of violence by AL to identify risk and put in place appropriate strategies; failing to provide security guards at the school; and on 11 December 2001 failing to provide a communication system. 229 Particular (a) in Matter No IRC7028 of 2003 The defendant was in breach on 10 December 2001 for allowing AL to attend the school By 10 December 2001, AL had been enrolled at the school on the application from his mother who declared his last school had been in Queensland. She revealed no other history. The defendant was aware it was common for parents or guardians of a child with a behavioural problem not to be forthcoming as to their child's full history. 230 AL had a very comprehensive history kept as to his behaviour in past schools in New South Wales in his District Guidance File. The defendant has a policy that no access to this file should be given to a Principal on enrolment except through the school counsellor. In such a circumstance the Principal on enrolment needs to have an "instinct" in order to require the school counsellor to conduct a TRIM search to determine if, on enrolment, a student may need special consideration. The enrolment of AL was made in this context on 15 October 2001. No search could be made. 231 However, the allegation is that at 10 December 2001, AL should not have been allowed to attend the school. The circumstance of the enrolment cannot be relied upon by the prosecutor. By 10 December 2001, the school had in my view a full assessment of this student both as to his educational and social needs. 232 Ms Mitchell became aware of the existence of the District Guidance File by 5 November 2001. She received two medical assessments from Queensland within a day of requesting them by 20 November 2001. She met with Ms Hromek, her supervisor, and determined a Special Support Teacher/Behaviour was needed. This had been her suggestion on 27 November 2001 when AL's mother had signed an agreement to seek such support. The access form was not signed by the District Guidance Officer until 6 December 2001 when Ms Hromek was satisfied as to the medical diagnosis of AL. AL had by then been suspended, had used threatening language and his behaviour generally was collated into a progress report. By 10 December 2001, the supervisor and counsellor had prepared the application for a Special Support Teacher/Behaviour and it had been rejected on 7 December 2001. Their concern was such the District Guidance Office agreed to come to the school to further assess AL but that did not occur before the incident on 10 December 2001. 233 On a reading of this Particular, it is asserted by the prosecutor that the student AL should have been taken out of the school before the incident on 10 December 2001. No teacher or expert was recommending at that stage AL be either suspended or expelled. The prosecutor asserted on 10 December there were a number of reasonably practical alternative steps available to the defendant before 10 December, given the school's knowledge of the history of AL and his behaviour at the school - which behaviour had included violent incidents such as putting staples into his arms and such steps included suspension, or expulsion or a placement in an alternative school. 234 However, it was the general view of the teachers and the experts at the District Guidance Office, in accordance with the policy of the defendant, that it is preferable to keep a student, if possible, in the mainstream school environment. The professional assessment of those involved in dealing with AL, including his teachers and the Guidance Officers, was the first step should be to support AL through the placement at the school of a Special Support Teacher/Behaviour. For a placement in a Special School, a thorough medical diagnosis was required including a psychiatric and psychological assessment. While that was being conducted, the school counsellor in consultation with AL's mother, determined as early as 27 November to apply for a Special Support Teacher/Behaviour.

[117]

238 The further proposition from the prosecutor is that on 10 December 2001, although there was no OHS Committee nor a Serious Incidents Committee on site and therefore no assessment was made of the potential for violence of AL and no recognition of the hazard created by AL's enrolment, nonetheless had such a Committee existed AL it would have suspended or expelled AL. It is here I feel a common sense approach must prevail. There was a Welfare Committee which monitored AL's behaviour, a Progress Report was prepared, all the history had been obtained including medicals and arising from that knowledge the professionals involved proceeded to obtain a Special Support Teacher/Behaviour. They did not change the application but rather pushed it forward as "urgent". 239 It is not difficult to speculate, and not necessarily in hindsight, that with the focus of an Serious Incidents Committee/OHS Committee on site before 10 December it would have determined AL's enrolment was a hazard and threat to teachers' safety. However, to go further and speculate that the defendant, with that knowledge, should have acted to ensure AL was suspended or expelled before 10 December 2001 is a proposition I reject. What alternative controls could have been put in place related to AL, and what success such controls may have had, are all speculative matters. There were a range of options available under the defendant's policies to address such a risk and the one chosen was the placement of a Special Support Teacher/Behaviour. It had not yet been put in place. The delay in putting the strategy into effect was most regrettable but it does not establish the particular to the charge, namely, that AL should not have been allowed to attend the school on 10 December 2001. 240 Given all the above circumstances, I am satisfied AL properly attended at the school on 10 December albeit without a Special Support Teacher/Behaviour which was by then identified as his need. This particular has therefore not been established as contributing to the alleged breach.

[118]

Particular (a) in Matter No IRC7029 of 2003 The defendant was in breach on 11 December 2001 for failing to prevent AL entering the school. 241 This is a different particular than that relied upon for the breach asserted on 10 December 2001. On 10 December 2001, AL had been removed from the school by an ambulance. AL had behaved in a violent drunken manner banging his head, and acting in such an aggressive manner that he caused injury to Mr Calrow and a serious disturbance at the school. 242 There was no evidence the school immediately, after the incident on the afternoon of 10 December or early on 11 December 2001, took any step to officially suspend or expel AL. It should have at least suspended him. AL, his mother and/or guardian should have immediately received such a communication from the school. AL had been taken away by ambulance and the police had been called. Once again there is an element of delay in the decision making process this time at the school level. The policy allows for urgent action. The school in such a circumstance should have immediately put in place steps to suspend AL in a fair way then conducting an inquiry before possible expulsion. Immediately, however, a suspension should have been communicated to his parent/guardian. 243 While I accept AL's behaviour by way of his conversation and dress when he re-entered the school on 11 December was such that an inference could be cast that he knew he should not have entered the school premises, I do not believe such an inference could deflect from the defendant's obligation. It is the act or failure to act by the defendant which is the issue and such an act or failure must have a causal connection to the risk AL's attendance created to the teachers' safety. The risk was a potential further act of violence by AL which could cause psychological and physical injury to his teachers. AL had displayed physical aggression and violent behaviour on 10 December 2001 which had caused an actual injury to one of his teachers, Mr Calrow. The defendant's failure to act after the incident on 10 December 2001 allowed the risk to the safety of AL's teachers to continue into 11 December 2001. That risk again became a reality on 11 December 2001. 244 It was the failure to act after 10 December 2001 and before the 11 December 2001 that is the crucial element of this breach. There is no necessity, as advanced by the defendant, to consider whether AL may still have come to the school even if suspended. Rather it is the failure of the defendant to notify that AL should not attend at the school that is the act which establishes this particular of the breach.

[121]

The assessment through the Case Study and Progress Report contained references to AL's violent and aggressive behaviour. It is clear the focus after the assessment was not on staff safety. Such should have been considered by a Safety Committee in the school. Such a committee would have had a different focus from the Welfare Committee and could even have influenced the decision on the placement by the Ad Hoc Committee. 247 The Department policy required the Serious Incident Committee/OHS Committee to identify potential hazards, to consider the possibility of violent acts and to design strategies to deal with such a circumstance. Such strategies were then to be implemented. The policy particularly recognised such an assessment required a consideration of possible acts of violence involving staff. The Committee after 3 December 2001 would have had before it significant evidence of AL's potential for violence. By 6 December 2001, AL was called "dangerous" and Ms Mitchell noted he was a: harm to other students . . . violent and aggressive outburst, threatening behaviour towards students. 248 She conceded the situation was becoming more serious. The application was referred to as "urgent". 249 Those descriptive words indicate a de facto risk assessment had been made. It is not necessary here to speculate on what the Serious Incidents Committee/OHS Committee may have done. It is only necessary to note it was obliged to risk assess AL at the school and put strategies into place in the school to ensure safe working. A range of strategies were available under the policy guidelines. 250 This particular exposes there was not so much a policy vacuum in the defendant's system of work there was, rather, a complete lack of knowledge amongst staff of the requirement and need to assess for safety and no real understanding was held by the teachers of the need to assess the student who had a penchant for violent episodes in the context of the provision of a safe working environment for staff. The defendant, through the school, failed to conduct the last stage of the necessary risk assessment. Given its knowledge of AL's penchant for violent acts, the defendant failed to identify AL as a safety risk to the staff and to put strategies in place to protect its teachers from any violent act. There was therefore no adequate and complete risk assessment. 251 I find the defendant on both 10 and 11 December 2001, failed to undertake an adequate risk assessment in relation to the potential risk occurring due to AL attending the school.

[122]

Particular (c) in Matter Nos IRC7028&7029 of 2003 The defendant on 10 December 2001 and 11 December 2001 - failed to ensure that there was available the results of a complete medical, psychological and psychiatric assessment of AL 252 Ms Mitchell began to make appointments, and she urged AL's mother to make appointments, for the medical examinations required for the assessment and alternative placements applications. She made follow up telephone calls for advice from the specialist unit at the Prince of Wales Hospital as the more comprehensive information related to AL's behaviour became available. The evidence reveals under the defendant's systems all applications for special placements required a complete medical, psychological and psychiatric assessment of the student concerned. It is difficult, but not to say impossible, for the appropriate care to be put in place without identifying the depth of the problem. The defendant's system recognised this. However, it did not have in place access to such diagnostic avenues when urgency required a speedy medical assessment. 253 The situation from 6 December 2001 was so urgent Ms Hromek determined herself to identify the diagnosis as MH3. She based her assessment on the Queensland reports. Without the Queensland assessments the application for the Ad Hoc Meeting could not go forward. 254 The first appointment Ms Mitchell was able to make with the Prince of Wales Hospital was on 7 December 2001. While AL did not attend that appointment that does not detract from the fact that there was delay in gaining this professional assessment as required and such a delay contributed to the risk of injury to the staff in having AL in the school without support on 10 and 11 December 2001. It is also trite to comment it would have been difficult to conduct a full risk assessment of AL and to determine the best placement for him without these assessments. 255 I find this particular of the alleged breach is established on the evidence, namely, there was a failure to ensure there was available a complete medical, psychological and psychiatric assessment of AL on the relevant two dates.

[124]

256 The defendant had a policy of confidentiality related to AL's histories as contained in the District Guidance File. The rational for the policy is that a student who attends upon a school counsellor is given an assurance of confidentiality by the school counselling service which assurance allows the counsellor to play a more effective role in assisting the students. The District Guidance File reveals incidents of AL's actual and threatened violent behaviour at past schools and similar violent acts in his personal life. Further, the Progress Reports and Case Study prepared by 3 December 2001, revealed particular incidents of a threatening nature by AL at the school. 257 Much of this particular should be read with the prior particular requiring a risk assessment for the purpose of safe working. The natural purpose and consequence of the conduct of a risk assessment is to identify risk and put in place reduction strategies. This Particular challenges the confidentiality prerequisite guaranteed to the student against the distribution of the content of the District Guidance File. The school counsellor, Ms Mitchell, however, co-ordinated with the Welfare Committee and it was made aware of the result of some of her professional inquiries including an outline of AL's present and past history. She worked closely at the school with Ms Martin, the Year 9 Co-ordinator and the Welfare Committee. She worked closely with the District Guidance Office to keep them informed as to her assessment and level of concern. By 6 December 2001, Ms Hromek marked the application "Urgent". Ms Mitchell made her inquiries most effectively within the confines of the confidentiality prerequisite. There was no suggestion she breached any confidence contained in the file. 258 Given the circumstance reveals there was no active Serious Incidents Committee/OHS Committee at the school it is again speculative to comment how it is expected the information in the Case Study and the Progress Report on AL would have been treated by the Committee. Nonetheless, I have accepted the defendant failed to ensure the formation of a Serious Incidents Committee/OHS Committee at the school as required and thereby the defendant failed to "inform" the staff, in whatever limited manner, of AL's history. There had to be communication to the staff of such concerns related to AL's behaviour sufficient to allow safety strategies be put in place. The information had to be conveyed to at least members of the Serious Incidents Committee/OHS Committee overseeing safety under the defendant's own policy guidelines. It is only after the assessment with its focus on "safety" was made that strategies could be developed to ensure safe working. 259 As to the allegation there was a failure to consult staff it is relevant to note in the preparation of the Progress Report the relevant staff were consulted. The teachers who had direct teaching experience with AL were consulted. I do not believe the obligation to ensure safe working requires every teacher in the school to be given all information regarding AL. Rather those within the school with the responsibilities for safety should have been sufficiently informed in order to perform their function had there but been a Serious Incidents Committee/OHS Committee. 260 I find the defendant did fail to adequately inform the employees as to AL's past behaviour such as to allow the identification of the risk he posed to the safety of staff and for the appropriate reduction strategies to be put in place to meet the potential for violence of AL.

[125]

Particular (e) in Matter Nos IRC7028&7029 of 2003 The defendant on 10 December 2001 & 11 December 2001 - failed to provide a security guard or security guards at the school 261 By 3 November 2001, with the District Guidance File, her dealings with AL, her case study and with the school progress report on AL being prepared, Ms Mitchell assessed AL's behaviour as on occasion "dangerous" noting some students were "scared" of AL. Her concern was not such as to consider his suspension or expulsion. She continued to urge for a medical examination and a Special Support Teacher/Behaviour placement. 262 The existence at the school of a Serious Incidents Committee/OHS Committee may have (following receipt of the Progress Reports and Ms Mitchell's Case Study and Ms Hromek's medical assessment) with its focus on identifying hazards have adopted any number of the range of strategies available to it. The choice of appropriate strategies by the staff is acknowledged in the defendant's policy documents. While words such as "dangerous" and "urgent" were used in the assessment, I find there is no foundation for the prosecution to press for the Court to determine the appropriate strategy. This particular is in essence a possible strategy which may have been available for the reduction of risk. To assert the defendant should have placed a guard or guards on the entrance/exits on 10 and 11 December 2001 is to require the Court to select an appropriate strategy to eliminate a risk. The Court has only to be satisfied there were practical remedies available. 263 After the incident of 11 December 2001 involving AL, guards were placed by the school at the school gates. This fact does not persuade that this act to minimise risk after a violent incident is sufficient to establish the defendant should have enacted this strategy on or before 10 December 2001. While the security guard was placed on the gates after 11 December 2001 to avoid further incident I do not accept AL's behaviour before 10 December 2001 was such that the defendant failed to ensure the safety of its teachers by failing to place a guard at the school entrances and exits before or on that date. 264 Further, I have difficulty in accepting notwithstanding the level of aggression displayed on and before 10 December by AL, and while taking into account the knowledge the school held of his pattern of violent episodic incidents, that the defendant should have reacted to the incident on 10 December 2001 by placing guards at one or all the school gates to prevent the potential of AL re-entering the school grounds on 11 December 2001. 265 When given a prior suspension AL did not re-enter the school. His behaviour on 10 December 2001, while violent in its nature, did not necessarily reveal to the defendant that it was possible or even probable that AL would re-enter the school on 11 December 2001. 266 I cannot be persuaded this Court should determine what strategies should have been exercised to ensure safe working. The failure is a failure of the defendant to ensure safe working. Further, there was no evidence led to satisfy that the existence of guards on the school entrances and exits would have provided safe working for the teachers on either 10 or 11 December 2001. 267 I find this particular has not been established on the evidence on either dates.

[126]

Particular (f) in Matter No IRC7029 of 2003 The defendant on 11 December 2001 - failed to have in place adequate communication mechanisms so that there was communicated to Mr Cotterill or Ms McInnes, or both, any emergency caused by AL or there was a need to move these teachers and their students to a safe place, or both. 268 Two teachers with their pupils were playing a game of softball on the lower lowers. The school had a communication system. It was not connected to the lower lowers. There was no way to warn the teachers of AL's approach or that he was brandishing a knife in a threatening manner. Mr Ambler yelled an effective warning to the staff and students of the approach of AL. There was certainly a need to warn of the approaching risk and the threat to the safety of the teachers created by AL running towards them brandishing a knife. The facts satisfy me there was no "safe place" for the teachers to flee with their students except to the exit they chose namely: climbing over the school boundary fence and fleeing down the nearby public roadway. 269 I am satisfied there were a number of options available to the defendant which could have been used to communicate a warning to the teachers of the approach of AL. Technological devices such as walkie-talkies, mobile telephones, load speakers or a link to the school telephone system were all available communication devices which could have provided an adequate communication mechanism. The circumstance revealed such a communication system was necessary for the health and safety of the relevant teachers. 270 This particular does not have the standing of the prior Particular which assertion would have required the Court to determine a preferred strategy once a risk is identified. It is not for the Court to express a preference to one over other possible and reasonably practical reduction strategies. However as to this Particular I distinguish it from that relied upon in Particular (e). The school had a communication system. It was used by the various teachers to inform each other as to AL's progress as he rampaged around the school. There was in place a system of communication but its reach was limited and did not extend to the lower lowers in some form so as to protect against the risk AL posed. The failure to have a communication system to the lower lowers I find contributed to the risk to safety of the named teachers. I find this element of the breach is established on 11 December 2001.

[130]

Reliance was placed by the defendant on a s28 defence. The section has two limbs (a) and (b). 277 In relation to the s28(a) defence, relevant to the facts before me the principles are best enunciated in Fletcher Constructions as follows: [101] . . . Where an employer has established, maintained, and promulgated a relatively detailed system of safe work practices, it becomes meaningful to consider whether that employer has done all that is reasonably practicable. The highest that the respondent could put its "system" in this case was to say that it had delegated establishment and implementation of safe work procedures to the unmonitored discretion of a responsible individual: a unpersuasive argument in the light of Cullen where the majority held that a comparatively small degree of discretion left to the linesman rendered the otherwise detailed system unsafe. The establishment of the offences in this case, both of which included a failure to provide a safe system of work, was not challenged on appeal. The very establishment of an offence assumes a causal nexus between the conduct of the respondent and the consequent risk to the health, safety and welfare of its employees: see Kellogg at 253. … 5. In the present case, in order to make out the defence, the respondent would have to prove, on the civil standard, that it was not reasonably practicable for it to comply with its obligations under the Act by providing a safe system of work. The respondent has conceded that the risk was foreseeable (its own representative stopped work for this very reason) and that an alternative safe method of work, which presented no inconvenience, was known and available to the respondent. In those circumstances it could not be said that it was not reasonably practicable for it to comply with its obligation to ensure the safety of its employees. Indeed, even apart from those decisive factors, in circumstances where the respondent had no established systems or procedures, and had done nothing but delegate all safety issues to the unfettered discretion of one individual, thereby exposing itself unnecessarily to the ramifications of human error in all its forms, it is difficult to conceive a defence under s53(a) to the offences as charged and found. 278 The particular requirements therefore for a successful s28 defence (similar to s53 of the 1983 OHS Act) was summarised in Kellogg (No 1) (at 259) as follows: To establish a defence under s 53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. 279 The onus under s28 is carried by the defendant employer. It is a civil onus but a substantial one in the circumstance. From the submissions of the defendant a limited reliance is placed on the second limb of the defence, namely, the offences were due to causes over which the defendant had no control and against the happening of which it was impractical for the defendant to make provision (s28(b)). A similar submission as that raised by the defendant was rejected by Walton J, Vice-President, in O'Sullivan. The defendant has always conceded it had control over the school and given its own policy contains a number of strategies to meet the identified risk it difficult to propose it was impractical to make provision against acts of violence against teachers by a student with behavioural problems. Further, no defence was mounted under s26. 280 The first limb of s28 is that relied upon by the defendant namely: it was not reasonably practicable for the defendant to comply with its obligation under the OHS Act. In Cleary Bros, Walton J, Vice-President stated relevant to this circumstance: [88] . . .there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 281 The risk identified was the risk that acts of violence by AL would cause physical and/or psychological injury of teachers. The defendant asserted what was known by 10 and 11 December 2001 was AL had only episodes of aggression (violence). The risk over the years could vary in degree and evidence revealed outside influences could affect AL's behaviour therefore in such a circumstance it was unreasonable and impracticable to predict and therefore it was not reasonably practical for it to put strategies in place and thereby comply with the OHS Act. 282 I reject the proposition AL was only drunk on 10 December 2001. The applicable consideration is not that the defendant had to make a prediction that it was possible that AL would be attending the school drunk, rather the applicable test was whether AL was a risk to safety while attending the school on 10 December 2001. As a matter of fact I have found not only was AL drunk on 10 December 2001, his behaviour was violent and aggressive. 283 Further, on 11 December 2001 the most violent of the incidents occurred after which AL had to be taken away by ambulance and the police were called. The risk was the same risk on both 10 and 11 December 2001. 284 Both incidents exposed the teachers to injury and a number of teachers suffered injury. The failures of the defendant I have found were as pleaded and were acts of commission or omission and those acts were causally related to the risk. 285 A strategy had been determined to support AL but it was not in place. There had been acts of the defendant causing delay which delay meant no strategy even the one identified to support AL's educational and social needs had been implemented. Further, in breach of the defendant own policy there was a failure to risk assess AL with a focus on its teachers' safe working. Under the defendant's own policy it failed to address the assessment of AL's attendance at the school with a focus on staff safety and as a consequence failed to consider appropriate strategies for safe working. 286 A further element in the consideration of a defence is a determination on the foreseeability of the risk. Reasonable foreseeability of a risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. In Kellogg (No 1) the question of reasonable foreseeability was considered in this way (at 259): . . . It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight." 287 It was more than reasonably foreseeable that AL would pose a risk to teachers' safety. He was identified as dangerous and a safety risk. A Special Placements Application was treated as urgent. 288 The evidence established particularly by 10 December 2001 that it was within the defendant's knowledge that AL's behaviour was aggressive and, on occasions violent. This was assessed finally by 6 December 2001 (the Progress Report) but generally by 3 December 2001 (the Case Study). While the degree of violence escalated on the relevant dates I find that does not distract from the fact the defendant had knowledge of AL potential for violence. It should then have implemented its own procedure to identify the level of risk and put in place any of the identified reduction strategies for safe working. 289 The defendant cannot argue, and sensibly nor does it, that no measures to ensure safe working were reasonably available to it. There was a known and obvious risk in AL attending at the school on 10 and 11 December 2001. It was reasonably practicable to implement adequate measures to meet that identified risk. Evidence revealed its own policies contained a range of strategies that were available to manage AL. It had chosen one namely the appointment of a Special Support Teacher/Behaviour but that strategy had not been implemented. The delay in the implementation of the chosen strategy was of the defendant's own making. There were reasonable steps available to avoid the identified risk and it was reasonably practical to implement such steps. A minimisation strategy such as suspension was cost free. While the alternative placements including the placement of a Special Support Teacher/Behaviour may have been an added cost to the defendant, it does not argue, nor could it, that such a cost was prohibitive. 290 Alternative measures were available. There was no evidence led as to the scarcity of alternative placements. What became obvious was before such alternative placements were allocated there must be rigorous diagnosis of the needs of the student. This is not to be challenged. Rather what was necessary was urgent access to medical diagnosis in an urgent case. While such was not available to AL nonetheless it was reasonably practical to provide access for a medical assessment and it should have been available. 291 I have concluded that the defendant failed to discharge the onus it carries to establish a defence under s28 of the OHS Act in that it failed to adduce evidence or to show that the measures required to avoid or overcome the risk to safety in this workplace were too costly or outweigh the risk. Rather I find there were measures that it was reasonably practicable for the defendant to implement. It failed to do so. 292 I reject the application of the s28 defence under the OHS Act to either charge brought against the defendant. 293 The matters are to be fixed for the hearing of penalty.

Barry Johnson v State of NSW

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Judgment (131 paragraphs)

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Cases Cited (24)

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