Cahill v State of New South Wales [2008] NSWIRComm 246 | Case summary

Cahill v State of New South Wales [2008] NSWIRComm 246 | Case summary | Zoe

Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Chapman v Hearse (1961) 106 CLR 112 Daly Smith Corporation (Aust) Pty Limited v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 Drake Personnel Pty Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority v Caltex Refining Co Pty Ltd (1992) 178 CLR 477 Johnson v State of NSW (Department of Education and Training) [2006] NSWIRComm 109 Genner Constructions Pty Limited v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Morgan and Anor v Tame (2000) 49 NSWLR 21 Newcastle Wallsend Coal Company Pty Limited & Ors v McMartin (2006]) 159 IR 121 The Crown in Right of State of New South Wales (Department Of Education And Training) v O'Sullivan (2005) 143 IR 57 Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 CASES CITED: New South Wales v Fahy (2007) 232 CLR 486 R v Janceski (2005) 64 NSWLR 10 St Hilliers Contracting v WorkCover Authority (NSW) (2007) 162 IR 241 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 State of New South Wales v Mannall [2005] NSWCA 367 State Rail Authority (NSW) v Dawson (1990) 37 IR 110 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady [2003] NSWIRComm 219 Tame v New South Wales (2002) 211 CLR 317 New South Wales (NSW Police) v Inspector Paul Covi [2005] NSWIRComm 303 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 Workcover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure (T/as Australian Inland Energy and Water) (2003) 128 IR 257 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245 WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 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 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362

1 For safety reasons, staff employed at Cobham Juvenile Justice Detention Centre ('Cobham') and Putland Education and Training Unit ('Putland') are referred to at work only by their first names. I have observed that practice in this judgment, having regard to the obligations imposed upon the defendant by the Occupational Health and Safety Act 2000 ('the OHS Act'), in relation to ensuring the safety of its employees. 2 In March 2004, two teachers aides special ('TAS'), TAS Mary and TAS Su, were employed at Putland, a school conducted by the defendant, which is located inside Cobham. On 10 March, TAS Mary was involved in an incident in class, where she was working with a class teacher, Ron, and a number of detainees. When personal duress alarms were activated to call for assistance, there was no response and the two staff members were left to deal alone with the detainee threatening them. That detainee left, but was able to return to the classroom, in the company of another detainee, to make further threats. Still no assistance was provided. 3 On 15 March, TAS Mary was again working in class with teacher Ron, when another detainee threw a chair at him, while trashing the library in which the class was taking place. This detainee was restrained by several juvenile justice officers, who removed him from the class. The detainee was later charged with assault and transferred from the Centre. TAS Su observed some part of these events. On 17 March, a fight broke out between two detainees in a classroom in which TAS Su was working that day. Those detainees were dealt with by juvenile justice staff, when assistance was called. 4 Teacher Ron, TAS Mary and TAS Su each took sick leave and were later diagnosed and treated for psychological injuries, accepted by the defendant, after investigation, as having been sustained as the result of their experiences at work. 5 Three charges were subsequently brought against the defendant by Mr John Cahill, the Secretary of the Public Service Association of New South Wales ('the PSA'), for breach of s 8(1) of the OHS Act. Each charge was defended. 6 It was the prosecutor's case that each of the charges would be established by the proof of one, or more, of the particulars provided. The defendant denied that any of the alleged offences had been committed and claimed that, even if proven, it would establish statutory defences in respect of each charge. The charges brought 7 The three charges, as varied at the hearing without objection, were:

Did the defendant make out that defence in each of the three offences, on the balance of probabilities? The evidence 18 In the prosecution case, evidence was called from Mr Terry Hannan, Industrial Officer - Occupational Health and Safety, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales; Sharon Vasser, Organiser for Schools, Public Service Association of New South Wales; Teacher Ron; Janet Koussa, Consultant and Counselling Psychologist; TAS Mary; Dr Patrick Bannan, Consultant Psychiatrist; Dr Graham Edwards, Psychiatrist; Dr Pierre-Louis Lamarque, Psychologist; Rebecca B, Teacher, Dorchester ETU; Martha Knox Haly, Organisational Psychologist; TAS Su; Suzanne Mann, Loan in Service (organiser in school); Latu Sailosi, Organiser, Public Service Association of New South Wales; Sharan W, School Administrative Manager, Putland ETU. Numerous documents were also tendered. 19 In the defence case, evidence was called from Amanda B, Assistant Principal; Jayne M, Manager Client Services, Cobham Juvenile Justice Centre; Raymond H, VI Maintenance, Maintenance Department, Cobham Juvenile Justice Centre; Ian Armstrong, Manager Human Resource Projects and Administration in Staff and Services Directory; TAS Pam, Putland ETU; Norman Rees, Psychologist; Professor Christopher Tennant, Psychiatrist; David L, previously employed as a Department of Juvenile Justice Officer at Cobham Juvenile Justice Centre; Jon J, Assistant Principal, Putland ETU; Kate W, Principal, Putland ETU; Adrian Hawroyd, Unit Co-ordinator, Cobham Juvenile Justice Centre and Peter Muir, Acting Director-General, Department of Juvenile Justice. 20 The defendant objected to the receipt of expert evidence called from Ms Martha Knox Haly, an occupational psychologist. The objection was unsuccessful. (See Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) [2007] NSWIRComm 105.) What was Putland and how was it operated?

21 Putland, a school located at Cobham, is located in the DET's Penrith area. Putland provides education for youths aged between 10 and 21 years of age, while they are detained on remand for various types of offences, many serious, and many involving acts of violence. Some detainees on remand already have criminal records. In 2004, some detainees attending Putland were subject to control orders, having already been convicted of the offences with which they were charged. 22 Cobham detainees are given the opportunity to attend Putland, to undertake a variety of educational courses offered at both high school and TAFE levels. Cobham is operated by the Department of Juvenile Justice ('the DJJ'). The two Departments have a memorandum of understanding, as to their respective roles and responsibilities. The detainees reside at Cobham in one of a number of residential units. There is also a Children's Court located at the Centre. 23 Because of the nature of the Cobham facility, there is a very significant turnover of detainees attending Putland. The centre houses about 60 detainees at a time. Some 3,000 detainees are located at Cobham over the course of a year. Some detainees return to Putland on more than one occasion. Most detainees remain for relatively short periods of time. Those on control orders remain for longer periods. Some detainees remain at Cobham for considerable periods. 24 All those attending Putland have successfully completed DET courses which permit them to participate in the various classes offered there. In 2004, access to the courses offered at Putland, depended on detainees completing an initial induction programme and then a five day assessment programme, called the 'Access' programme. Detainees returning to Putland were re-assessed during a three day session, known as the 'Focus' programme. Staff commencing work at Putland also undertook an induction programme, the details of which had altered over the years. Teachers also sat in on Access programme, as a part of their induction to Putland. 25 Other programmes conducted at Putland included General Education, Impact (a physical education programme), and vocational courses such as cooking and horticulture. 26 Each morning, detainees undertaking educational courses at Putland were escorted from their units to the school by juvenile justice or youth officers (DJJ officers). Classes typically consisted of six detainees, taught by a teacher, who was assisted by a TAS. DJJ officers did not generally remain in the classrooms with the detainees, but were stationed in the vicinity, so that they could provide assistance, if required. Assistant principals (A/P's) were also available to assist staff with problems arising with detainees during class. 27 In March 2004, the classrooms were located around two quadrangles. In the larger quad, there was a pergola. A number of DJJ officers were stationed at the pergola during class, in order to be able to provide assistance to the school staff, if it was required, or to escort detainees from class, if they had to leave for any reason. An A/P was also located in that quad, available to provide assistance with any issues which might arise in class. That A/P was not always in the quad, being called away on occasions to the classes adjoining a second quad, or on occasions attending to a particular student, in a particular class. 28 The classes on the larger quad each had a glass wall facing onto the quad. There was an issue as to how well those who were stationed in the quad could see into any particular classroom, if the sun was shining onto the glass. On the evidence of some witnesses, at different times during the day, the glare prevented officers from seeing into certain classrooms. Other witnesses did not agree that this was a real difficulty. The issue does not need to be resolved. 29 In some classes, the library for example, where teacher Ron and TAS Mary were working on 15 March, there were things such as display cabinets placed in front of the glass, which partially obscured the view into the room. DJJ officers and A/Ps on duty in the quad could, however, hear if they were hailed from a classroom, the pergola only being quite a short distance away. What systems had the defendant established at Putland to ensure safety?

What were the defendant's safety systems directed at? 33 In order to understand the safety systems, what they were directed to, must be considered. 34 The DET recognised that staff which it employed at all of its schools, including Putland, were at risk of both physical and psychological injury at work. Teachers and TAS were called upon to perform their work at Putland, with detainees known to be violent. Such detainees posed an obvious safety risk, recognised by the DET. 35 The safety systems had to deal with a situation where there were frequent altercations between detainees; detainees also frequently subjected DET and DJJ staff working at Putland, to verbal abuse and also threatened staff with violence. On occasions violence was actually directed at DET staff by detainees and staff also observed violence being directed at other detainees and DJJ staff. Some detainees were charged with assault, as a result of such behaviour. At morning briefings Putland staff were also given information about such behaviour when engaged in by detainees, while in their units at Cobham in the evenings and over the weekends. 36 Both TAS Mary and TAS Su had themselves been involved in situations where violence had erupted between the detainees, before the events of March 2004. 37 DET staff were, on occasions, themselves required to physically intervene in altercations between students, when they perceived a student being attacked might be at risk of serious physical injury, before assistance arrived from DJJ staff. In 2003, TAS Mary had been involved in such an incident. 38 All detainees attending Putland were treated as potentially dangerous and were treated as posing a high risk for staff safety. The system sought to ensure that staff were never alone with any detainee. There was a known risk of hostage taking and violence. By March 2004, most detainees at Cobham had been charged with serious crimes, including arms offences, sexual offences, and various offences involving violence. The older detainees were physically adult sized men, some large adult sized men. 39 Prior to March 2004, both detainees and Putland staff were subjected to violence and threats of violence by detainees. It was the evidence of Mr Armstrong, the DET's District Staff Welfare Officer, that the DET was then aware that a number of Putland staff had gone off on stress related claims for psychological injuries, relating to the environment of the school and issues associated with the detainees. Putland was the only school in the district located within a juvenile justice centre. This gave rise to some circumstances, in terms of the teaching environment, that were not common in the other 58 schools in the district. It was considered to be the most dangerous school, in terms of staff being exposed to actual or threatened violence. That was why various practical safety measures were put in place.

Duress alarms and radios 40 The teacher and TAS in each class were each provided with a personal duress alarm, in the event that they required assistance while in class. The teacher also had a radio, by which assistance could also be called, if required. Such assistance was provided by DJJ officers, the DJJ having custodial responsibility for detainees. Assistance was also provided by A/Ps, depending on the issue which had arisen with a detainee. 41 The duress alarm carried by teachers and TAS staff sounded in the Putland general office as well as illuminating a light, on a board in the office, when activated. The names of those working in each classroom, were identified on that board, which lit up when an alarm was pressed, identifying the classroom in which that person was working. The Office Assistant, Sharan W, or whoever was performing her role, would then respond to the alarm by sending out a call for assistance over the radio. 42 The system had a known difficulty in March 2004. While use of the radio was classroom staffs' quickest means of gaining assistance, if the radio was already in use by someone else, it was not possible to override that conversation. This meant that teachers could not use the radio to call for assistance in such circumstances and if they used their duress alarms to call for assistance, Sharan W could also not use the radio to call for aid. In that event, Sharan W could step from her office, near the doorway to the large quad, to call out to the DJJ officers on duty in the quad, alerting them to the need to attend to the duress alarm. Staff were consequently instructed to keep their use of the radio to a minimum and to change to a second channel, if they needed to have any extended discussion with someone by radio. 43 Staff could also themselves call out from the doorway of their classrooms to DJJ officers in the quad, if assistance was required. On A/P Rebecca's evidence, that was the third method of gaining assistance, the first was the buzzer and then the radio. 44 Even if radio traffic permitted its use for assistance to be called, teachers had a discretion not to use the radio, but instead to use their duress alarm to call for aid, if they judged that using the radio would exacerbate what they were being confronted with, by a detainee or detainees. This was a matter for an individual teacher to judge. 45 Once assistance was called, it was usually provided promptly. A/P Rebecca's experience was that it was rare to get no response, if assistance was sought.

Morning briefings 50 DET staff were provided with information as to detainee behaviour, each day. 51 The system involved Putland staff being provided with information each morning from each residential unit at the Centre, as to which detainees would be attending school that day. Each day detainees were allocated to classes and listed on a draft daily activity programme ('DAP') sheet, which was typically discussed by the Principal, all A/Ps, teachers and TAS at morning briefings, conducted before school each day. All Putland staff were required to attend the DAP meeting and if absent, to familiarise themselves with the final DAP sheet, before attending class. These meetings generally lasted for about half an hour and were also attended by DJJ officers, including unit managers, who provided DET staff with information from the residential unit log books, about relevant events which had occurred overnight in the residential units at Cobham. Such DJJ staff could answer questions which Putland staff had. The log information was read out at the briefing, permitting discussion by Putland staff, about matters such as class makeup and whether or not particular detainees should be permitted to attend school. Meetings could continue for longer than the usual half hour, if any issues needed longer discussion. 52 A final DAP sheet was produced at the end of the meeting and a copy was provided to school staff and to the DJJ officers. Detainees were then escorted from their residential units, to their allocated classes by DJJ staff. Apart from recess and lunch breaks, students were only permitted to leave their classes in the company of a DJJ officer, or an A/P, even to attend the bathroom. Detainees movements were recorded, although not always, if the reason for leaving the class was to attend the bathroom. 53 There were issues between the parties as to whether the DAP discussions were effective in March 2004 and whether, in reality, teachers and TAS were permitted to have real input into the decisions made as to detainee attendance, at these morning meetings.

Information provided to staff, including the alert system 60 The approach operating at Putland was that while details of charges which detainees faced were available to DET staff, if they accessed records kept at the school, staff were encouraged not to be concerned with the particular charges laid against detainees. They were all to be treated as students. Such information was not routinely provided to staff, nor were they provided with ongoing written historical information as to detainees' behaviour, while in detention. Such a history depended on staff recollection of events at Putland and information provided at morning briefings. Nor were staff given access to the CIMS computer system, where such historical information was maintained by the DJJ. 61 While all detainees were treated as being potentially violent and giving rise to a high risk, A/P Rebecca explained that as educators, Putland staff were not concerned with the details of what they had been charged with. The only written information systematically provided in relation to issues of violence in relation to particular detainees, was that conveyed by the alert system in operation. 62 These alerts notified staff of particular matters, including if a detainee was at risk of self harm; had been charged with a sexual offence, (in which case, they were not permitted to be alone with female staff); had been violent in custody; were an escape risk; were a serious offender, or were subject to a behaviour management plan. 63 Detainee alerts were notified to staff daily at morning briefings. They were also recorded on a whiteboard, located near the staff room and were also supposed to be noted by teachers each day in their day books, although the day books did not always contain such information. While no written information was routinely provided in relation to the detainees, there were certain records which staff could have access to, if they wished. 64 Staff were also informed daily of any difficulties which had arisen in the residential units, in relation to the behaviour of particular detainees, since they had last been at school, at each morning briefing.

Government wide safety initiatives 74 Various arms of Government had developed policies to deal with the risk of violence to staff, across the public sector. The DET had also taken steps to establish paper policies, to ensure that those risks were precluded from manifesting at its schools, including Putland. The failure to implement such policies, is thus relevant both to a consideration of whether the offences charged were established, as well as to whether the defence which the defendant sought to establish, was made out. 75 Violence in workplaces giving rise to occupational health and safety issues, was no new phenomena in 2004. The predecessor to the current Act was enacted in 1983. Unsurprisingly, over time since then, various Government agencies have given attention to this problem and how it might be addressed in workplaces. 76 In November 2002, the WorkCover Authority of New South Wales published a document, 'Workplace Violence', which identified various categories of violence which can arise in workplaces. They included - Type 2, consumer/client related violence, which included violence against staff, vicarious trauma to staff and staff violence to consumer/clients and Type 4, organisational, which involved organisations knowingly placing staff in dangerous or violent situations, or allowing a climate of abuse, bullying or harassment to thrive in the workplace. 77 The risks which arose from violence and other stressors at work, occupational stress, that is 'the emotions people feel in upsetting circumstances', also became the subject of a Hazard Identification and Risk Management Strategy, issued by the Premier's Department, in September 2003. This strategy, it was explained, was concerned that 'sustained emotional upset in some situations might lead to diagnosed physical, psychological, or psychiatric illness or disease which has been substantially caused or aggravated as the result of work circumstances'. 78 The Premier's Department strategy was intended to improve occupational health and safety systems across the public sector. It required that:

The 2002 DET 'Guide to Occupational health safety and injury management' 81 In 2002, the DET had published a 'Guide to Occupational health, safety and injury management', designed to provide 'information and advice for principals and other staff members to develop or revise their own workplace procedures and guidelines for occupational health and safety.' 82 Detainee violence and threatening behaviour against staff and other detainees, was an issue which the DET constantly had to confront at Putland. Prior to March 2004, it had resulted in staff injuries and leave. 83 This Guide advised that principals were obliged to know hazards in their workplace; to find ways to eliminate or control them; to warn employees about the hazards and to train them in safe work practices. Principals were directed to use a WorkCover hazard identification tool known as 'Hazpak', to identify hazards, including psychological hazards, such as interpersonal conflict, as well as physical or psychological damage caused by student violence. The elimination of such hazards was explained to be more complex, because 'the potential source is invariably people and interpersonal relationships.' The Guide also directed that 'stress is considered a psychological hazard and, within the context of a workplace risk management system, must be identified, assessed and controlled where possible.' Risk control , monitoring and review, were all emphasised. 84 Despite this policy, the Hazpak tool was not used to assess risks which detainees posed for staff at Putland. Although the Principal claimed that the principles underlying the tool were used, for example at morning briefings, the evidence showed that no risk assessment of the kind required by this policy had been undertaken at Putland, in relation to this particular risk, by March 2004. 85 This DET Guide also dealt expressly with workplace stress management. It required workplace managers to identify possible causes of stress and to explore ways of managing them, by making appropriate changes. A hazard identification process was specified, so that an occupational anti-stress program could be developed. It required the review of information such as workers compensation claims; incident reports; absenteeism, sick leave; complaints; staff turnover and staff morale, so that a risk assessment could be conducted. 86 The Principal also confirmed in her evidence that this policy was not in operation at Putland in March 2004, other than perhaps, in some ad hoc way. That approach had failed to adequately identify that TAS Su and TAS Mary were at risk of psychological injury, in March 2004. Certainly no steps were taken to manage that risk, in so far as it had been identified by the Principal, despite she then being of the view that neither TAS Su nor TAS Mary were then coping at work.

· We are provided with a valuable opportunity to make a difference in the lives of some often very damaged young people. · Education and training is the catalyst for change. It is therefore the way in which people who work with the detainees in Cobham can help turn the young people's lives around with the intention of "breaking the crime cycle" and the ultimate goal of facilitating community integration. · Education and training of the young people is the reason for programs. · We are committed to meeting as many of the education and training needs of as many of the young men at Cobham as possible. · We are committed to a collaborative and totally integrated service delivery model. 90 As to risk, the 'philosophical response' noted in this policy was: s We believe that "one teachable moment well spent has the potential to make a difference". s We may provide the last opportunity for our clients to access education and training. s We are committed to providing equal opportunity to detainees regarding access to education and training. s Risk is inherent in the nature of our clients and the setting in which work. s We believe that risk should be managed by implementing controls rather than denying detainees access to education an(sic) training provision. s It must be remembered that our extremely high turnover means that decisions must be made quickly in order that we may provide meaningful educational service. s Remandees are by law innocent until proven guilty. s We believe that good communication is vital and that all relevant information must be shared with all stakeholders. 91 The evidence suggested that the emphasis placed in this document on giving detainees access to education, was in practice, achieved at the expense of staff safety, when controls implemented by the defendant failed to prevent staff exposure to violence and threats of violence from detainees. The aim of 'all relevant information' being shared with all stakeholders, was certainly not achieved in practice, on the evidence. 92 While the Hazpak tool was used to risk assess the various programmes conducted at Putland - all assessed to be low risk, it was not used to assess detainees. The risk assessment of programmes involved both the LEATCC and the Cobham Occupational Health and Safety Committee. The approach adopted to detainees was that all detainees were assessed to be of high risk, so that they were given access only to programmes assessed to be low risk, as a way of controlling the high risk to safety which the detainees posed. 93 What this LEATCC policy document did not provide for, was a risk assessment of students undertaking particular classes. On the evidence of the Principal, such a risk assessment was undertaken in practice at Putland, through the application of 'the principles' underlying the WorkCover risk assessment tool, Hazpak, in various ways, particularly at morning briefings. While the defendant submitted that there was no statutory, or other obligation, to use that tool to assess the risks which individual detainees presented, it cannot be overlooked that the DET's own 2002 'Guide to Occupational health safety and injury management', did contemplate the use of that tool. 94 Despite this, at Putland, the Hazpak tool was not used in order to assess the risks posed by particular detainees, or their participation in any particular class, or the combination of detainees attending any class, on any particular day. Before being permitted to undertake classes, they each had to go through the Induction Program and the Access programme. If returning to Putland after an absence, they had to undertake a shorter re-entry programme, the Focus programme. 95 None of these programmes ever resulted in an individual risk assessment for a detainee, having regard to the detainee's particular circumstances.

An AP and the principal responded to teachers' request for support during the session. During first recess, while students were being supervised by DJJ staff in the ETU, three students escaped through the ETU vocational area, over the fence and left the custodial area via the construction site. One detainee was subsequently apprehended and returned to Cobham. At the same time two students were involved in a physical altercation in the main courtyard witnessed by a several ETU staff. Investigation by DJJ personnel determined that security in the ETU vocational area required enhancement. Consequently the ETU will be unable to occupy this area until the works have been completed. The ETU had access to seven classrooms prior to the escape. Until DJJ completes the security enhancements, ETU will have access to only three classrooms. 102 That report did not deal with what had occurred that day with TD in teacher Ron and TAS Mary's class. As the Principal conceded in her evidence, that event was a serious incident, and under this policy, should have been reported, involving as it did, a serious breakdown of the practical safety system in operation at Putland. Despite this, no serious incident report was generated; the matter was never investigated and attempts made by the staff to discuss the matter with the Principal were deflected. There was a serious incident report issued by the Principal for the 15 March incident. 103 This 'Management of Serious Incidents Guideline' policy was not adhered to at Putland, in other respects. For example, the policy required Putland to have a Serious Incidents Committee, which met twice a year and after each serious incident. Neither this Committee, nor an Occupational Health and Safety Committee, which could have undertaken the work required, existed at Putland. There was an overall Safety Committee for Cobham, but no evidence that either of the two serious incident reports which the Principal provided in respect of 10 and 15 March, were referred to, or considered by that Committee. 104 It was the Principal's evidence that on her return to Putland on 10 March, after being involved in the pursuit of the escapees, a staff meeting was in progress. It was suggested to her by staff present, that there be a staff review of what had occurred, which she declined, because, in her opinion, that was a matter for the DJJ. 105 Instead of discussing staff concerns about the events of 10 March, with staff, the Principal directed that the school staff were not to discuss those matters together; there was no investigation of, or explanation for, the failure to provide a response to the duress alarms sounded from TAS Mary and teacher Ron's class on 10 March, or the other departures from applicable policies, that day. Instead, staff were told that the matter was to be dealt with by the DJJ. This was also inconsistent with the 'recovery time line' aspect of this Guideline, which directed that within the first 24 hours: s organise a meeting with all relevant persons for the purpose of updating them on the incident situation and for discussion of personal issues and concerns; s arrange counselling as needed; s work with the media; s keep staff, students, and parents informed; and s complete and forward a Serious Incident Report to the district superintendent or institute director 106 The Guide also provided that:

OHS Committee activities and detainee risk assessment 113 Risk assessment of individual detainees was an ongoing challenge at Putland. The minutes of meetings of the Cobham Occupational Health and Safety Committee, showed that in October 2002, 'the process for risk assessment and risk management of Cobham and ETU programs and detainees is currently under review'. As it transpired, that review occupied a considerable period of time and was not complete in 2004, at the time of the alleged offences. 114 That there was no separate occupational, health and safety committee at Putland in 2004, was a matter of staff discontent at the time. The Principal, an A/P and a TAS, were the Putland representatives on the Cobham Occupational Health and Safety Committee. Risk assessment was a matter of ongoing consideration by that Committee. Minutes of meetings of the Committee showed, however, that the committee had difficulty in coming to grips with risk assessment at Putland. 115 In January 2004, the Occupational Health and Safety Committee minutes recorded that it was to assess the risk management procedures of LEATCC client programmes, which required approval. The matter was again on the agenda of the February meeting. 116 Later in 2004, written risk assessments of the various programmes provided at Putland were issued. They were signed by the Principal, the Centre Manager and an LEATCC representative in May 2004. A Cobham Occupational Health and Safety Committee representative did not sign the assessments until August 2004. The Principal's evidence was that despite the dates on which these documents were signed, they were in practical operation earlier. 117 Despite the lengthy process which produced these documents, some of the risk assessments were deficient on their face. For example, the assessments for the Access and Focus programmes, undertaken by detainees entering or returning to Putland, dealt with the potential hazard arising from challenging behaviour by detainees. All detainees who successfully completed such programmes were regarded to be high risk. Despite this, in the case of other programmes, which were undertaken by detainees once those introductory programmes had been completed successfully, including the General Education class in which problems arose on 10 and 15 March 2004, the programme risk assessment took no similar account of the particular hazards which could be posed by challenging behaviour, on the part of the detainees participating in that programme. 118 That attention should have been paid to that hazard cannot be doubted, given the evidence as to the acts of violence and other threatening behaviour which detainees frequently engaged in, during such classes at Putland, after having successfully completed the Access programme. That attention was paid to the risk in the Focus and Access programmes, but not programmes later undertaken, was an obvious gap in the assessment. 119 In the case of the risk assessment document for the General Education class taught by teacher Ron and TAS Mary, it was noted that:

For example centre support staff may identify detainees unsuitable for participation due to current health, psychological or drug issues. Other detainee exceptional risk factors may be identified through the daily risk assessment process. If this process determines that elimination is the appropriate control, the identified detainee will not participate. 120 This expressly envisaged that detainees assessed either by DJJ staff, or at the morning DAP meeting, as presenting 'exceptional risk factors', could be precluded from attending class. This was contrary to the defendant's case, that on 10 and 15 March, excluding TD and BH from class would merely have transferred the risk which they presented to others working at Cobham. 121 Daily programme hazard identification documents in use at Putland in March 2004, did not deal with particular hazards posed by detainees. On the evidence, that issue was dealt with at DAP meetings, attended by all Putland staff and some DJJ officers each morning before school. Information as to student behaviour since last attending school was then shared and considered. A draft DAP sheet was discussed and settled. On the Principal's evidence, the Hazpak tool was not used in this meeting to identify whether any student, or proposed combination of students in any class, presented any particular hazard that day, but the 'principles underpinning' that tool were used. That evidence was not consistent with the evidence of other witnesses, as to how these discussions were, in fact, undertaken. 122 Even apart from that controversy, the obvious difficulty with the approach adopted was that it was ad hoc, rather than systematic and relied heavily on information as to conduct engaged in by detainees in their units, being read out at the meeting. There was evidence that a detainee's most recent behaviour, was the best predictor of the risk of further violence and other challenging behaviour. It was not the only predictor. The approach adopted in practice did not ensure that there was any ongoing record of detainee conduct, able to be considered by those determining each morning what access detainees should have to Putland programmes and what detainees should be placed together in class. This was despite the Taking Safety Seriously Policy envisaging that there would be such a document provided to staff. 123 Instead, current information conveyed orally at the meeting, was considered by those attending, in the context that all detainees were universally regarded to be 'high risk'. The evidence of the nature of the detainees at Putland, the propensity which many of them had to act violently and in other threatening ways, the fact that many of them did engage in that behaviour, helped explain why they were all regarded to be high risk. 124 What the evidence also showed, however, was that in March 2004, there was a recognised ongoing problem with risk assessment of detainees' behaviour at Putland. There was a Centre Support Team which considered individual detainees referred to it, when behavioural issues arose. Nevertheless, applicable DET policies for detainee risk assessment were not in operation. The practical systems which were operating, namely the assessment made at morning DAP meetings, were not a reliable way of determining which detainees would engage in behaviour which might put staff safety at risk that day. Such situations still arose frequently in class, with the result that staff then had to deal with what they were confronted with. 125 The Principal's evidence was that to have applied Hazpak to risk assessment of detainees at Putland, would have effectively precluded the school being run. That evidence was difficult to accept, but even if correct, did not alter the fact that the morning DAP meeting process operating at Putland, was unable to identify all detainees who should not be given access to class that day, if staff safety was to be assured. 126 The daily assessment was made at a meeting which took some 20 to 30 minutes in total to complete, although it could take longer, if necessary. The assessment was of all detainees (up to 60), who would be attending that day, at a morning meeting of staff, based on information conveyed orally of relevant behaviour since the detainees had last attended school, together with any notified alerts. There were no documented records of ongoing detainee behaviour provided. Of necessity, this approach relied, in part, on staff members' memories of students' past behaviour. 127 In a system where some detainees were only briefly at Putland, others remained for relatively short periods, but later returned and still others remained for longer, or even quite lengthy periods, that this could have been an approach which ensured safe assessment of 'exceptional risks' posed by particular detainees on any particular day, let alone the hazards potentially arising from interaction between up to six detainees attending one class, seems unlikely. Putland staff had to deal with individual detainees who posed risks as a result of their own behaviour, as well as situations where violence often flared between members of differing racial and other groups. There were also other known reasons for tensions arising and leading to outbreaks of violence in classrooms. 128 All of this, no doubt, explains the poor results of the safety audit at Putland in 2003 and the change in the system by which risk assessments of detainees began to be undertaken, after March 2004. 129 The approach adopted at Putland also contrasted to that adopted by the DJJ. It had a written procedure for 'Behaviour Management - Managing Difficult Behaviour'. This document noted that:

There is a significant link between managing difficult behaviour and risk assessment, and the management of identified risk. A detainee's difficult behaviour (eg. assault, fighting, threats of violence) presents some of the greatest risks to staff and other detainees. s The behaviour provides information about risk, and enables staff to assess and re-assess the detainee's risk rating and program participation. s The response, if it demonstrates consideration of the best possible way to reduce the behaviour, and to stop it occurring in the future, reduces the level of risk and enables staff to identify a wider range of risk controls. 130 This DJJ procedure required a written record of 'each behaviour management event and the reporting and decision making process' to be maintained daily by staff. This running record of behaviour was used by the DJJ to predict and deal with difficult behaviour, including the development of behaviour management plans for detainees. That written record was not shared with the DET. 131 On 10 March, 15 March and 17 March, the morning DAP process was ineffective in identifying and eliminating the hazards posed that day by detainees in the classes in which TAS Mary and TAS Su were involved. Changes followed. 132 On 21 March 2004, the Principal issued a memo to staff, reminding them that morning briefings were 'an essential component of our risk assessment and risk management process', and that it had been introduced after the 'fatal stabbing of a colleague' at another detention centre educational training unit. 133 Later in 2004, Putland introduced a new risk assessment procedure for detainees. This was, undoubtedly, a sensible response to the problems which had earlier occurred, according with Professor Tennant's view that detainees who were violent or threatening violence, should be individually assessed. By that time, it was apparent that teacher Ron, TAS Mary and TAS Su had sustained serious psychological injuries at work and would not be returning to Putland. Was there ongoing staff discontent at Putland as to safety matters?

139 Cobham was conducted by the DJJ in accordance with the provisions of the Children (Detention Centres) Act 1987. That legislation regulated the way in which detainees were to be treated and how detainees' misbehaviour was to be dealt with. Detainees were regarded both as having the right to an education and were encouraged to pursue it at Putland. Under this legislation, detainees under 15 years of age, were obliged to participate in such education and the defendant was obliged to provide it. Even so, the Children (Detention Centres) Act permitted the use of the mechanism of detainee exclusion from class, in the event of misbehaviour, although the mechanism was the subject of specified controls. Thus removal from class and confinement for specified periods of time, were mechanisms in frequent use at Putland, to deal with detainee misbehaviour. 140 Detainees frequently engaged in and threatened violence and directed other threatening behaviour towards other detainees and DJJ and DET staff. On the evidence, education alleviated detainee boredom, a recognised safety risk for DJJ staff. In that context, the importance of the opportunity which Putland offered detainees incarcerated at Cobham, in ensuring that while in remand, they continued to have access to education, cannot be understated. That opportunity was not only one which was consistent with the statutory requirement, that even while being punished, detainees must be given 'some means of usefully occupying himself or herself' (s 21(2)(a) of the Children (Detention Centres) Act), it was also one plainly in the public interest and in accordance with the obligations imposed upon the defendant by the OHS Act, to ensure its employees' safety. 141 Access to continuing education thus provided the detainees with activities which had the potential benefit of reducing the stress, anxiety and boredom created by the incarceration of a group of young men, many of whom came from disadvantaged backgrounds, while they were detained on remand. Had the opportunity to attend Putland not been available to the detainees, the risks which people who worked with the detainees at Cobham were exposed to, may well have been even more serious than the undoubted risks which the detainees created for those workers. 142 The benefit which access to education provided to the detainees themselves, should thus not be understated. Education potentially provided them with a means to choose a different path in life, to that which they had chosen to that point, which had brought them to Cobham. That the employees of the DET working at Putland were aware of, and supported such concerns, was also very apparent from the evidence of various of the witnesses and in the policy documents in evidence. 143 That attitude was very much to their credit and that of the defendant, given the challenge which working with the detainees incarcerated at Cobham presented. Cobham and Putland staff, undoubtedly, undertake difficult and socially important work. 144 It is in this context that the obligations which the OHS Act imposed upon the defendant, arose for consideration. That legislation imposed an absolute obligation to ensure the safety of those employed to work at Putland. The defendant was plainly aware of its obligations and sought to address them in various ways, through the policies and practices which the DET and DJJ implemented at Putland - both paper systems and those operating in practice. The DET and the DJJ, also had other obligations which they had to meet, such as those which fell upon them under the Children (Detention Centres) Act, in relation to the welfare and safety of the detainees. 145 It was the defendant's case that it had to balance these two statutory obligations, in a way which meant that the obligations imposed by the OHS Act, had to give way to those imposed by the Children (Detention Centres) Act. I am unable to accept that submission. 146 I am satisfied, for similar reasons to those which I discussed in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245, that in meeting the statutory obligations which it had in respect of detainees at Putland, the defendant could not sacrifice the safety of its staff, which the OHS Act required that it ensure. 147 In this case, the defendant did not seek to challenge the correctness of the conclusions reached by the President, Justice Boland, in Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [291], that the offences created by s 8 of the OHS Act, were absolute liability offences. In coming to that conclusion, his Honour followed well settled law discussed, for example, in Newcastle Wallsend Coal Company Pty Limited v McMartin (2006) 159 IR 121 at [214] - [215], in the context of the predecessor to the Act, the Occupational Health and Safety Act 1983. As the defendant accepted, there is no reason to doubt the correctness of Boland J's conclusions, in the context of the current Act. It has been confirmed by the Court of Appeal decision in Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465 at [304]. 148 Given the nature of the obligations imposed by the OHS Act, I adhere to the views which I reached in Central Sydney Area Health Service. There I observed at [90]:

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. 152 The defendant submitted that her Honour's approach was correct and must be applied in this case. The prosecutor argued that her Honour had erred and that the approach in Central Sydney Area Health Service must be followed. 153 If her Honour was suggesting in Johnson, that the absolute obligation imposed by the OHS Act on the defendant, to ensure the safety of its employees at work, need not be met, when the defendant also had an obligation imposed by the other statutory obligation there in question, to provide education to students attending its schools, with the result that the education had to be provided, even if the only way in which that could be done, was at the risk of its employees' safety, I find myself in disagreement with her Honour. 154 I do not, however, read her Honour's judgment in Johnson as so providing. The conclusions which her Honour reached as to the defendant's failures to ensure safety, on the evidence there before her, led to the conclusion that the defendant was guilty of certain offences charged under the OHS Act. While her Honour spoke of 'balancing' of statutory obligations, in coming to her conclusions, her Honour took the view that even though both statutory obligations imposed on the defendant had to be met by it, in the approach adopted in the circumstances which had led to the charges, the defendant had failed to ensure safety, as the OHS Act required of it. 155 In this case, that the defendant also did not approach its obligations at Putland, on the basis that the statutory obligation to provide detainees with access to education, overrode its obligation to ensure its employees' safety, was, in any event, apparent, given the policies and procedures in evidence. They recognised the risk of injury at work, potentially flowing from employees' exposure to detainees' violent and threatening behaviour and established mechanisms designed to ensure that those risks did not manifest. Those mechanisms included excluding detainees from class completely, if their behaviour put employees' safety at risk. That mechanism was one provided for by the Children (Detention Centres) Act and was implemented at Putland, if judged necessary. None of the defendant's policies or systems required that detainees would be provided with access to classes at Putland, even if staff safety could not be ensured. What occurred at Putland on 10 March, especially so far as TAS Mary was concerned? 156 There were issues between the parties as to what had, in fact, occurred, at particular times, including on 10 March 2004. While teacher Ron, TAS Mary and TAS Su who each gave evidence, had suffered illness, the question of caution necessary to be adopted to their evidence, as discussed in State of New South Wales v Mannall [2005] NSWCA 367, must be approached in this case having in mind that under the defendant's systems, contemporaneous records were maintained, which recorded what had occurred. While the employees' conduct and their evidence was criticised in various ways in the defendant's case, it is convenient to observe at this point that I found each of them to be honest witnesses. Undoubtedly, their evidence, like that of other witnesses, was affected by the passage of time. Nevertheless, in resolving factual questions, the contemporaneous documents were able to shed light on the events in question. Thereby evidentiary contests were able to be resolved. 157 On 10 March 2004, teacher Ron and TAS Mary were working together in a General Education class in session 1. A detainee, TD, then aged 15 years, engaged in behaviour which resulted in teacher Ron and TAS Mary providing a level 2 behaviour report, after the class, as to what had occurred. The report was prepared closely after the events had occurred. The report was provided to A/P Amanda that morning, who added her comments. Copies went to the DJJ and were maintained at Putland, where they were available to the Principal and other staff. 158 Putland operated this reporting system, as a means of keeping a record of detainee misbehaviour; suggested punishment and steps taken as a result of inappropriate behaviour. It was this report which enabled DJJ staff to administer punishment to detainees in accordance with the provisions of the Children (Detention Centres) Act. The system in operation required staff to be released from class, in order to prepare these reports immediately after an incident. 159 In these proceedings, both teacher Ron and TAS Mary gave evidence largely consistent with their reports, as to what had transpired that morning, although, unsurprisingly, some three years later, there were some variations between the report and their evidence. What these reports did not detail was that there was no response to the duress alarms sounded. No A/P or DJJ staff responded and TD, the detainee, was able to return to class unsupervised, twice, once in the company of another detainee. That omission is not surprising. These reports were not concerned with issues of that kind. On the evidence, the failure of the alarm system was immediately brought to the attention of the acting duty A/P Amanda, by TAS Mary. TAS Mary and teacher Ron both also spoke to the Principal about that issue that day. They also sought to raise it in staff meetings that day and in following days. 160 There was also in evidence reports later prepared by Ms Koussa, as the result of an investigation undertaken after teacher Ron and TAS Mary made workers' compensation claims. Ms Koussa had interviewed teacher Ron, TAS Mary, TAS Su, a number of A/Ps and the Principal. Ms Koussa's report was also largely consistent with the evidence in these proceedings, as to the events of 10 March. TAS Mary and teacher Ron were later treated and interviewed by a number of medical practitioners, to whom they each gave accounts as to what had transpired at Putland in March 2004, prior to their injuries. Again, the details of these accounts, as recorded by the relevant medical practitioner, departed somewhat from accounts given at other times. Nothing much ultimately turned on this, given contemporaneously produced records, maintained by the defendant in accordance with its systems. 161 The level 2 behaviour report, with the applicable statutory scheme, provided:

OUTCOMES: Date: 15/3/04. s DET serious incident advice completed. s Confinement 12 Hours. s Returned to ETU by Application and Completion of Focus. s Teacher Ron, TAS Mary, TAS Pam supported by AP Rebecca and AP Sue. Staff referred to EAP and School Counsellor s Register of injuries completed for staff. s Police contacted by JJ staff - Y.O. staff charging BH s Teacher Ron to charge 184 The Principal said in her serious incident report about this event that: Putland ETU School Name School Phone **** **** Principal Kate W District Penrith Superintendent & Phone David Phipps **** **** Date of Incident 15.3.04 Time of Incident 12.45 pm

TAS Mary reported that she did not return to work after Monday 15 March 2004. TAS Mary claimed that she had tried to raise her concerns about staff safety in the ETU with the principal, Ms Kate W., but that each time she was made to feel as if she was exaggerating and reported that when she had tried to raise these issues in staff meetings, Ms Kate W. had "cut her off". TAS Mary reported that she does not feel able to return to Putland ETU despite having worked there for approximately 12 years. TAS Mary also stated that her colleague, Teacher Ron. had also gone off work following the incidents on Wednesday, 10 March, 2004 and Monday, 15 March, 2004. 187 Ms Koussa noted A/P Rebecca as saying: In describing the incident on 15 March 2004 that had led TAS Mary to go off work Ms Rebecca B. stated that she was the Assistant Principal responsible for the smooth running of the school program that day; which meant that all communications regarding any issue about the ETU had to be communicated to her. Ms Rebecca B. reported that teacher Ron had called for her assistance because a student (BH) had gone in and out of the classroom and had been misbehaving. Ms Rebecca B. confirmed that she had taken BH out of the classroom and returned him approximately 10 minutes later but that she had remained with BH in the classroom. She said that despite this he continued to be disruptive and demanded to know his points. Ms Rebecca B. said that when Teacher Ron. had not responded to BH's demands immediately, BH had stood up and thrown a chair at Teacher Ron. and proceeded to "trash the room". Ms Rebecca B. stated that the duress alarm had been pressed and that youth officers had responded but that it took a lot to restrain BH as he was throwing books off the bookshelves and attempted to pull down the bookshelves themselves. Ms Rebecca B. stated that BH continued to be violent and assaulted youth officers out in the courtyard. She related that since this incident, BH had been transferred from the Cobham Juvenile Justice Centre and that he never returned to the classroom after that. She stated that TAS Mary had finished the day at work but that she had not returned to work since that incident on 15 March 2004.

Ms Kate W. reiterated that "she [TAS Mary] does a good job and is in valuable here and if she wants to come back I'd welcome her with open arms". However, Ms Kate W. also said that she believed TAS Mary had been at Putland ETU a long time and that it may be overdue for TAS Mary to look for work elsewhere for her own well-being. 189 BH was later charged with assaulting a DJJ officer. He was not charged with assaulting teacher Ron. He was transferred to another detention centre, Kariong, where more serious offenders were then remanded. 190 On 15 March, both teacher Ron and TAS Mary were referred to the school counsellor and the DET's Employee Assistance Programme. They each also sought medical attention. TAS Mary did not ever return to Putland. Teacher Ron went on sick leave some days later. He also never returned. 191 The evidence of teacher Ron, TAS Mary and other witnesses, largely corroborated their earlier written accounts of what had occurred that day. As one would expect, given that the evidence was given some years later and that each witness gave an account of what they had observed and recollected, there were some differences as to what had occurred, which it is unnecessary to deal with here. What occurred at Putland between 10 and 17 March, especially so far as TAS Mary and TAS Su were concerned? 192 What occurred on 10 March has earlier been recounted. On 11 March there was no school. The staff met, including TAS Mary and TAS Su, but the Principal did not permit them to discuss the safety issues arising from the events of the previous day, either in relation to the escape, or the events in teacher Ron and TAS Mary's class. 193 On 12 March, classes were conducted in the morning. TAS Mary and TAS Su were both at work. Teacher Ron was not. The new procedures described in relation to the classes which occurred on 15 March began. There was no evidence that any risk assessment was undertaken, in relation to this system. Jayne M's evidence was that she was not aware of any such assessment. TAS Mary worked that day with the Impact class in which BH was enrolled. 194 There were no classes in the afternoon. At the usual Friday afternoon weekly meetings, there was still no discussion permitted of the events of 10 March, and no investigation of how the safety system had come to fail. 195 The events of 15 March have earlier been described. Some witnesses described the atmosphere at Putland after the escape as 'electric', with detainees generally agitated. The situation which developed in the quad with BH, was being observed by other DET staff, including TAS Su. This was unsurprising, given how classrooms were configured around the quad, the noise and commotion which BH was making and the difficulties DJJ staff were having in controlling him. On the evidence, it seems to me that this situation can only have reinforced to DET staff who witnessed what occurred, including TAS Mary and TAS Su, the nature of the serious risks to which they were being subjected in their employment at Putland; concerns which the Principal had simply dismissed out of hand, when staff had repeatedly sought to raise their safety with her, as recently as the preceding Friday. That very morning, despite DJJ advice that all detainees required very, very close supervision ('vvcs') classes went ahead on a new basis, without additional controls. 196 TAS Su's evidence was that she was very affected by what she observed. There is no reason to doubt that evidence. TAS Mary took sick leave from 15 March and did not return to Putland. Given even the Principal's description of TAS Mary, her attitude and her approach to her work, that she was severely affected by what occurred that day, cannot be doubted. 197 On 16 March, TAS Mary was absent from school. She never returned to Putland. Teacher Ron and TAS Su were both at work. 198 On 17 March, TAS Su was working in class when another fight broke out between detainees. While she does not appear to have been at personal risk of injury that day, it seems that this was the final straw for her, as it was described in the evidence. Thereafter she was simply unable to cope any longer, despite further attempts to do so. Her injury prevented that attempt succeeding and she was directed to seek medical attention. Given what had transpired since 10 March and TAS Su's undoubted concerns beforehand, for her safety at work, that this was a traumatising event, cannot be doubted on the evidence. 199 On 17 March, TAS Su was assisting teacher Mauro in a class. She herself had to use her duress alarm to call for assistance, when there was an altercation between two detainees. DJJ staff were called and responded to deal with those detainees. TAS Su was removed from class and later helped to prepare an incident report into the incident. It provided:

477 While it was submitted that account also had to be taken of the memorandum of understanding between the DJJ and the DET, under which DJJ staff had custodial responsibility for detainees and ensuring safety, the fact remains that staff at Putland were provided with this Departmental bulletin and were required to keep it in a folder, because it applied to them at Putland. On TAS Mary's evidence, staff acted in accordance with it. She had done so herself. 478 On teacher Ron's evidence, while he was not ordinarily obliged to restrain students, on 10 March, if TD had attacked TAS Mary, he would have tried to stop him. That evidence must be accepted. 479 DET staff did not receive training in how to restrain detainees, as did DJJ staff, even though they had been given training in how to deal with a hostage situation. The evidence was that PART training included training in how to de-escalate an event that may lead to a critical incident, plainly relevant training given how safety at Putland was arranged. 480 On TAS Mary's evidence, in 1999, she had tried to separate two detainees when there was an altercation which resulted in one attempting to strangle the other. She understood that she had an obligation to intervene in a situation of the kind with which she was confronted, having already sought assistance by use of the duress alarm. 481 The failure of the system on 10 March, demonstrated the necessity for such self defence and restraint training, as an available control for circumstances where staff were confronted with violent and threatening behaviour from detainees, when DJJ staff were not present in class to deal with such behaviour. The evidence of incidents which had materialised before 10 March, when the DET policy which required staff to physically intervene, if other detainees were at risk of physical injury, resulting in TAS Mary's intervention and herself then suffering a slight physical injury, showed that the necessity for such a control, ought to have been well recognised by then. In the light of such experience, that this training should have been given before March 2004, is not open to doubt, given the system which operated at Putland, if safety was to be ensured when the classroom staff had to deal with what confronted them, until help arrived. After March 2004, steps were taken to ensure that Putland staff received such training. 482 It follows that there can be no doubt that this particular was established.

484 That the 10 March incident contributed to the psychological injury sustained by TAS Mary, was thus entirely consistent with her own accounts, including that first given to Ms Koussa. This was corroborated by the evidence of A/P Rebecca, as to TAS Mary's state that day. It was also consistent with what the Principal told Ms Koussa about TAS Mary. Both her GP and treating psychiatrist Dr Proberts diagnosed a psychological injury. Dr Proberts' view was that she was suffering from post traumatic stress disorder. In her evidence, Ms Koussa explained that the dreams TAS Mary described, were the result of experiencing a traumatic incident, which begin to emerge, when a person's coping mechanisms have been breached. 485 Jayne M's evidence was that it was known that staff at Putland could be exposed to actual or threatened violence on a number of occasions. That was certainly TAS Mary's experience, before 10 March 2004. Jayne M also said that in her own experience, this could have a cumulative impact on the psychological health of such a staff member and that in the spectrum of minor to more serious violent incidents, it could even be an incident that was relatively minor, that was the straw that broke the camel's back, so far as sustaining an injury was concerned. The expert evidence supported that view, as did various of the defendant's policies, I have already dealt with. 486 Jayne M did not herself regard the events of 10 March to be minor. The OHS Act obliges employers to be proactive, in ensuring staff safety. The expert evidence confirmed that it was not possible for an employer to predict the exact incident which would 'push someone over the edge', so that a psychological injury would result. That was recognised in the defendant's own policies, which thus required managers such as the Principal, to be looking for signs that employees were not coping and to deal with them, to prevent an injury occurring. The Principal's evidence was that even before the events of 10 March, she had detected that TAS Mary was no longer coping at work. The defendant's policies envisaged that steps would be taken to deal with such a situation, if detected. No such steps were taken, even despite the views the Principal held about TAS Mary. 487 It follows that the defendant's submissions that 'it was not possible for the employer to have anticipated and put in place measures to prevent the injury that was ultimately sustained by TAS Mary from having occurred', may not be accepted. The defendant had a paper system in place, designed to ensure that it satisfied its obligation to be proactive in ensuring safety and protecting employees from suffering psychological injury. It was not operating at Putland, with the result that the Principal took no steps to deal with what she had herself perceived about TAS Mary and her vulnerability to injury. 488 The expert evidence called by the defendant, sought to establish that it was not possible for the defendant to have predicted TAS Mary's vulnerability to any psychological injury, and that it could not have been predicted that the events of 10 March would have led to such an injury. Professor Tennant, for instance, expressed the opinion that while it was a stressful day, it was not of such significance as to indicate psychiatric morbidity and would not cause enduring psychological symptoms in the average person, although his view altered somewhat, given the different version of the events in question, put to him in cross examination. 489 In this case it was necessary to approach the expert evidence with some caution. There were numerous issues between the parties as to what had occurred on this day. While there was a contemporaneous report as to TD's behaviour, it did not deal with the entirety of the problems encountered by the staff, as the result of the failure of the safety systems that day. Despite what was reported to the defendant by Ms Koussa, the defendant disputed that such failures had occurred. That was so, even though it had failed to conduct an investigation into the incidents which occurred with TD that day, in TAS Mary's class, as its own policies required. 490 Of necessity, the expert opinions expressed, thus rested on the factual information provided to them. The defendant's approach to those facts, departed in a number of significant ways from the facts found as the result of these contested proceedings. The result was that the opinions expressed in various written reports, were of more limited assistance than they would have been, had there been no question as to the events of 10 March. 491 Also to be considered is that in cross examination, the experts agreed with various propositions put to them by the prosecutor, which threw a different light on the risk of psychological injury, flowing from what TAS Mary experienced that day. 492 For example, Professor Tennant was not made aware of the failure of the defendant's safety systems that day. The Professor was aware that the system provided for back up - a radio and two duress alarms, but agreed that the circumstances with which TAS Mary was actually confronted with that day, were not trivial. Still, Professor Tennant was of the view that what had occurred was not significant enough to cause enduring psychological injury in the average person, but that it might cause brief psychological distress. Other experts finally did not share that view, as I have earlier explained. 493 Despite the Professor's opinion, I am well satisfied that the evidence established, to the requisite standard, that the events of 10 March contributed to the psychological injury which TAS Mary suffered. The events of 15 March 2004 - Matter Number IRC 1390 of 2006 494 The offence charged was:

What was the risk to which TAS Mary and TAS Su were exposed? 497 The report provided by teacher Ron and TAS Mary as to the events of 15 March, is earlier set out. BH, who was 17, had been admitted to Cobham on 3 March 2004, having earlier been on remand at the Centre in January 2004. He was a serious offender. It was well known to the defendant that he was a detainee who had engaged in violent behaviour while in custody, putting staff safety at risk. On the previous weekend, he had been violent towards DJJ staff, over dissatisfaction with the points which he earned under the points system. He had been put in confinement by way of punishment. All detainees, including BH, were assessed as requiring 'very, very close' supervision on 15 March. Despite this, no additional controls were put in place, to ensure that BH did not engage in behaviour in class, which would put staff safety at risk. 498 In the General Education class that day, despite having engaged in behaviour which would have had the result of him again not earning maximum points, BH was removed and then returned to class. There he learned that he would not earn maximum points. He then engaged in behaviour which exposed the staff present in class, including TAS Mary to the risk of injury. Again, TAS Mary, attempted to calm BH down. She failed. BH's behaviour included throwing a chair with considerable force at teacher Ron, narrowly missing his head. With difficulty, he was then removed from class. Professor Tennant's opinion, that this incident was trivial, simply cannot be accepted, on the evidence. Indeed, in cross examination, he proffered the opinion that a detainee throwing a chair with some force at a teacher's head and narrowly missing him, would probably be a police charge. That was also Jayne M's view. 499 BH then physically injured DJJ staff in the course of being removed from the quad, for which he was later charged with assault and transferred to Kariong. The difficulties which DJJ staff had in dealing with BH were observed by other DET staff, including TAS Mary and TAS Su. In the circumstances prevailing at Putland, I am satisfied that, thereby, they were also put at risk of injury, these risks undoubtedly arising at work. 500 TAS Mary's evidence put in context the nature of the risk to which she was exposed. She explained that from the beginning of the class, the detainees were not happy with being there. They did not settle. Despite interruption, teacher Ron explained the School Rules, that having been emphasised by the Principal at the morning briefing. BH's response was insolent, 'We know the school rules, sir.' He and another detainee repeating 'we know the effing rules. Fucking rules'. A geography lesson was planned, concentrating on the Middle East, given the composition of the class. It was an Impact class required to attend a General Education class, as a consequence of the building programme and the aftermath of the escape on 10 March. There were insufficient classrooms to operate Putland normally. Other detainees, who were not interested, were removed by A/P Sue. 501 BH initially participated in the class, but then announced he needed to go to the toilet, so TAS Mary rose to go to the doorway to call a DJJ officer, with teacher Ron telling BH that they had to arrange for him to go. Detainees were not permitted to leave a class unaccompanied to go to the toilet. BH did not wait, but went out past TAS Mary, marched to the toilet, beckoning a DJJ officer to accompany him. When there was no sign of BH returning, TAS Mary looked to see him at the pergola sitting with a DJJ officer and TAS Su. When she called to BH, he told her 'I'm speaking to Su.' BH then returned to class by himself, unescorted. Teacher Ron told him that leaving the room without permission would incur a five point penalty, in order to deter him from leaving again. BH claimed that he was not aware of this and was unhappy with what he had been told. BH said 'I'm not going to lose points you fucking dog. I'm not going to lose points for going to the fucking toilet. I'm not going to lose fucking points. I'll tell you I'm not going to. That is it'. 502 Teacher Ron then called A/P Rebecca for assistance because TAS Su was tied up. A/P Rebecca took BH out and returned him about 10 minutes later. On her evidence, TAS Mary hoped that he would be kept out longer, because he had been 'full on' and she had felt threatened by him, explaining that he was a very, very threatening young man by reputation. On her evidence, A/P Rebecca had asked the DJJ officer to remain nearby, being concerned about BH's potential behaviour. While he was gone things had settled in class and when he returned, TAS Mary observed a DJJ officer following he and A/P Rebecca. A/P Rebecca told teacher Ron that BH had indicated that he would improve and that she would stay to make sure that he settled down. BH then asked teacher Ron what his points were and was told that they would be discussed at the end of the lesson. After about two minutes, BH got up, saying that he wanted to borrow some library books and went out of the room again, without permission. As he did, teacher Ron told him that if he left, he would lose further points. BH went nevertheless. 503 On the evidence, it was apparent that by this stage, the trigger for behaviour which put staff safety at risk - not achieving available points - was well and truly present. Despite the violence in which BH had engaged over the preceding weekend as a result of his points, this trigger was not recognised, or dealt with, as it could have been by not permitting BH to return to the classroom. Even though a DJJ officer was standing outside, BH was allowed to return again to class. 504 BH returned, indicating some books on a window display, saying that he wanted to borrow them. He then went to his chair, turned it and sat straddling the chair and started berating teacher Ron again with words like 'What's my fucking points? I'm not losing my fucking points, if you take my fucking points I'll kill you.' Teacher Ron told BH that he was busy with another student and 'When I'm finished, I will speak to you'. BH did not wait and again started abusing teacher Ron. TAS Mary got up and went to BH to try to coax him to ease off and pause. She had only said one or two sentences to him before he started abusing teacher Ron again. When teacher Ron told him that he had lost another five points for leaving the room, BH stood up, picked up his chair, put it behind him and flung it with full force at teacher Ron's head. The chair was heavy, made of hardened plastic and hit a computer monitor behind teacher Ron, when it missed him. BH then went around the room pushing books and magazines off shelves and tried to push over a row of shelves, by domino effect. 505 Teacher Ron's account was to similar effect, but that from his perspective, BH did not seem very threatening, in the lead up to the shouting, abuse and throwing of the chair. Teacher Ron was surprised when it was thrown. 506 The youth officer outside did not come in alone to deal with BH, he waited for assistance. A/P Rebecca called for assistance over the radio. At this point TAS Mary described BH roaring like an animal, with his face distorted, roaming around the room, throwing books and trying to push shelves over. The others in the room stood well back. BH then completely lost it, struggling with the DJJ officers who were trying to control him, when they came to remove him from class. They restrained him with difficulty. He was punching and kicking. 507 While this was taking place, TAS Mary went to deal with one of the other detainees, who was standing with hands clenched, watching BH. This was another detainee known for causing problems and not obeying staff instructions. TAS Mary stood beside him, saying '[R] you are not going to get involved' and he replied 'Why not [B] is my mate'. TAS Mary was worried, because he was well built, over six feet in height and physically strong. She felt that if he had assisted BH to get away from the DJJ officers, who were struggling with BH, she and teacher Ron would have been in trouble. TAS Mary kept talking to the second detainee, to convince him not to become involved, putting her hand on his arm and asking him not to watch what was happening with BH. The Principal entered the room before BH was finally removed by the three youth officers. 508 Initially, TAS Mary did not observe what was happening in the quad, still being engaged with the other detainee. When he moved to the window, TAS Mary followed. It was close to lunch and TAS Mary was concerned as to what would happen, if other detainees were released into the quad for lunch, given the trouble the DJJ staff were having with BH. What occurred in the quad was a prolonged violent struggle, between a number of DJJ staff and BH. They subdued him with difficulty. He assaulted a DJJ officer in the process. TAS Mary, TAS Su and other staff observed what occurred. 509 TAS Mary explained that she could not have just left the room then, she was dealing with the other detainee and that the only time a TAS left a room was if there was an incident and the TAS was relieved to go and write the necessary report. She explained that:

'... you just don't abandon the ship. If the staff walked out I'm not saying we are there to physically help but you don't walk out and just let all the detainees go for it. You're there to deter and to assist in any way you can to stop it escalating. There is no way you would walk out.' 510 Afterwards, TAS Mary returned to the staff room, someone made her tea and A/P Rebecca and another A/P spoke to her, as did a DJJ officer, who she noticed had a lot of blood on his trousers, which he told he had got in the fight with BH, who had assaulted other DJJ officers. When she tried to go back to the class to clean up, she was told that it had been done and that she was not to go back. She had to fill in an injury form. TAS Mary found the documents too hard to complete and A/P Rebecca helped her. Another colleague later drove behind her, as she drove home. When she stopped to buy some milk, she 'really' started to react and he had to carry her shopping. Still she was able to drive home slowly. She subsequently sought medical attention. 511 On this evidence there can be no question that BH's threatening and violent behaviour put the safety of a number of staff, including TAS Mary and TAS Su, at risk. What information did the staff have about BH before 15 March? 512 There were issues between the parties as to what information had been provided to the staff about BH. The difficulties which I explained in relation to how information was conveyed at Putland, in relation to the 10 March incident, also prevailed in relation to BH on 15 March. 513 Again, despite what the defendant's paper policies required, the information provided to staff operated at Putland, as I have outlined in relation to TD. There were various sources of information available to staff about detainees. Principally, they all heard about detainee behaviour at morning briefings and information was also communicated through the alert system, as well as through conversations between staff. Past misbehaviour reports were kept and there were summaries of unit logs and files maintained in relation to detainees, which staff could access. A/P Amanda's evidence was that teachers had to make themselves familiar with students, before they had them in their class, including any behaviour management plans for particular students. There were none for BH. Staff were encouraged not to concern themselves with the reasons for detainees' incarceration or their charge history. BH's propensity for difficult, violent behaviour was well known to staff, but they were not provided with the type of documents which the defendant's policies envisaged. 514 In accordance with the defendant's system, BH's three hour confinement for violence over his points, over the previous weekend, would have been discussed at the morning briefing, when the practice was for such information to be given orally to staff. TAS Mary and teacher Ron would thus have had that information. So, too, would the general advice given that day, in relation to all students attending school that day, that they required 'vvcs'. No increased or heightened controls were implemented in response to this advice, other than to have an additional TAS in teacher Ron's class. Having an additional TAS was not a decision made for safety reasons. On the evidence, under the defendant's system, DET staff were not responsible for ensuring safety. It reflected the fact that not all classes were operating, so extra TAS staff were available to assist in a class with which they were familiar. No additional controls were put in place for BH. Despite his record, and despite an earlier recommendation that he have a behaviour management plan, none was in place. Staff were simply told to emphasise the School Rules in class. 515 On 15 March, there was an alert for violence in custody in relation to BH, reflective of his behaviour over the weekend. Such alerts were provided to staff for information, but they did not routinely result in detainees being dealt with any differently to other detainees. It was the Principal's evidence that BH was in teacher Ron's class that day, because only General Education and Distance Education programmes were then operating, because in the aftermath of the escape, there were not sufficient classrooms available, to physically conduct all classes. It was the defendant's case that given that there had been no school on 11 March and half a day on 12 March, it followed that there would have been sufficient time for teacher Ron to have familiarised himself with BH and to access any necessary information about him. That submission has to be considered in light of the practical system which the defendant operated and its failure to individually assess the risks posed by detainees. I have already described those deficiencies, in relation to the first charge. They applied equally in the case of BH. 516 For her part, TAS Mary knew that BH had given other teachers trouble in their classes before 15 March. She had heard bad things about his behaviour and that he resented authority. She knew from what she had heard at morning briefings that he had trashed his room and had done damage, but there were no behaviour management plans in place to deal with him. 517 Teacher Ron's evidence was that he had some 15 minutes to familiarise himself with BH before he took him in class on 15 March. His approach was to ask about a detainee from teachers who had taught him before, rather than checking records. He had learned from his enquiries that the Impact class BH was enrolled in, was a difficult class. 518 There was a question on the evidence as to whether teacher Ron had objected to being given BH's class to teach at the morning DAP meeting, but it was decided that he would go ahead, or whether he had raised this with A/P Rebecca afterwards. Teacher Ron could only remember speaking to A/P Rebecca about being assigned BH's class, outside the morning briefing. Teacher Ron agreed that he could have refused to take the class, but he did not do so, after his discussion with A/P Rebecca. A/P Rebecca could not remember the conversation. Nor could A/P Amanda or TAS Pam remember BH being raised at the morning briefing. TAS Su believed that it had been discussed at the DAP meeting when the Principal reminded staff to raise the School Rules with detainees in class, to make sure they were understood. It is unnecessary to resolve this. However it happened, a decision was made on 15 March to proceed to have the Impact class undertake a General Education class, allowing BH to attend class that day without any additional safety mechanisms in place, to deal with any heightened risk, which he posed that day. 519 That decision was made in circumstances were there were obvious deficiencies in the defendant's practical systems in relation to providing relevant information about detainees; as well as the failure to implement various written policies, discussed in the context of TD on 10 March; or to have a behaviour management plan in place, as at 15 March, in relation to BH, even though that had earlier been recommended, given BH's history of violence in custody. 520 It was Professor Tennant's evidence in cross examination, that a past history of significant violence is an important predictor of violence in custody. Violence in custody would also confirm the potential danger of such detainees committing actual or threatened violence to staff, while at Putland. Professor Tennant also said that the nature of the violence or threatened violence in which a detainee had engaged, had to be taken into account, in making any assessment of risk. Given the way in which risk assessments were generally made at Putland, namely that all detainees were high risk and that at DAP meetings, namely on the basis of oral information made provided to staff, there were obvious deficiencies, so far as BH was concerned. The result was that the system did not identify the risk which BH posed on 15 March and so he was given access to class. The result was an extended, violent episode, involving both teacher Ron and TAS staff, including TAS Mary, an A/P and DJJ staff. 521 On the evidence the defendant had information available that BH posed a risk on 15 March, of engaging in violent behaviour. Such information was conveyed to staff at the morning DAP meeting, putting them on notice that a risk to their safety could occur that day. While all detainees were assessed as requiring 'vvcs', including BH, who had been confined over the weekend for behaviour triggered by application of the School Rules, no extra controls were put in place that day. That risk finally manifested in class, after he was removed from and returned to class. There were warning signs beforehand that BH was likely to engage in violent and threatening behaviour. Still, no steps were taken to exclude him.

Whether the School Rule system was a cause of violent or aggressive behaviour 522 The defendant's approach was that the School Rules were designed to encourage good behaviour, but on the evidence there is no doubt that for some detainees, including BH, they were a known trigger for misbehaviour. 523 BH was confined for three hours on the weekend before 15 March, for being violent or aggressive over points earned on the unit. The defendant's approach to such behaviour constituting a warning sign, that a detainee posed a heightened risk of misbehaviour at Putland, was dealt with in Mr Muir's evidence. In his view, that situation was not an obvious sign that BH might misbehave in class on 15 March. This was consistent with A/P Amanda's evidence, that confinement for abusing a youth officer on a unit did not usually lead to exclusion from school. 524 That assessment of BH was plainly wrong. The trigger for BH's misbehaviour on 15 March, was undoubtedly the fact that he would not earn maximum points, after having left teacher Ron's class without permission. On his return, when he was told that he would not earn five of the available points, he became abusive and A/P Rebecca was called on the radio. BH was taken out of class, where he remained for 5 to 10 minutes. After he was returned, he left again, to look at books from the window outside. Even though there was then a DJJ officer stationed nearby, where A/P Rebecca had asked him to remain, when she returned BH to class, BH was permitted to re-enter the class again. A/P Rebecca was then still in the classroom. Plainly, when she returned BH to class, A/P Rebecca had a concern about BH, which was well founded. When BH returned to class, he again began swearing at teacher Ron. TAS Mary believed he also said that 'I will kill you', although teacher Ron was not sure as to what had been said. The situation escalated when teacher Ron told BH he had lost further points. It was then that his violent behaviour erupted. Given BH's known pattern of behaviour, most recently engaged in over the preceding weekend, that loss of points was likely to trigger such behaviour, was well known to the defendant and yet, no steps were taken to preclude him from returning to class, even though the behaviour for which he was removed would lead to a loss of points under the School Rules and he had already been abusing teacher Ron, conduct itself not permitted under the School Rules supposed to be operating at Putland.

Did TAS Mary have any basis for concern for her safety on 15 March? 525 There was only one other student left in class with teacher Ron, TAS Mary, TAS Pam and A/P Rebecca, when BH was returned to class. When teacher Ron told BH that he would lose another five points for leaving class for the second time, BH threw a hardened plastic chair with considerable force at teacher Ron's head. Fortunately it missed and hit a computer instead. That was not as the result of any action taken by the defendant. At that point, everyone pressed their alarms and A/P Rebecca called over the radio for help. The first DJJ officer waiting outside the class did not enter alone to deal with BH, he waited for assistance before entering the room, which BH was trashing, commenting that he should 'make it worth his while'. There is no question on the evidence that it was well known to the defendant that exposing its staff to such behaviour put them at risk of injury. There can be no doubt that they were exposed to that risk on 15 March. 526 It was the defendant's case that before the difficulties erupted in class that day, that TAS Mary can have had no real concerns for her safety, because she had earlier called out to BH from the classroom, that he should return from where he was talking to a DJJ officer in the quad, after having gone to the toilet. Be that as it may, TAS Mary certainly had concerns after his return. A/P Rebecca was called to remove him and on her evidence, which I accept, TAS Mary had hoped he would be kept out. Given what was known of his behaviour over the weekend, there was a proper basis for that hope. Soon enough, his violent behaviour erupted, once he learned that walking out of class without permission meant that he could not earn maximum points. This occurred despite TAS Mary's intervention. As she described it, she feared at one point that BH was getting the better of the DJJ officers struggling with him in class and that she and teacher Ron would get assaulted, if he got away. 527 She described BH as out of control and beyond reason. For her part, TAS Pam did not share that concern. She felt that BH's behaviour was deliberate and controlled, when he threw the chair at teacher Ron and then trashed the room. He only got out of control, in her view, as he was being taken outside the room, when he struggled violently with DJJ officers. If that assessment of BH's behaviour in the classroom be correct, it must be observed that given the expert evidence, the risk which BH posed to staff was even greater than it might otherwise be thought to have been. Deliberately throwing the chair, with considerable force at teacher Ron's head and then trashing the room as premeditated actions, would have been even more serious than the chair and books being thrown as a part of an uncontrolled tantrum, or rage. 528 TAS Pam had never been physically attacked by a detainee at Putland, and her evidence was that for the majority of the time at Putland, she felt safe, given the personal alarms and the procedures in place. In her experience, DJJ assistance always came quickly. Her unease, on about 2% of the time, arose, she said, from the risk of violence from detainees, although she did not feel physically threatened by BH, who was being controlled by DJJ staff. 529 On his evidence, teacher Ron was trying to pacify BH, when he threw the chair which narrowly missed his head, after banging the desk, shouting and swearing, demanding his points. While the defendant submitted that it would have been difficult for BH to have missed teacher Ron, from such a short range, if that had truly been his intent, the submission, it appears to me, rather missed the point. The charge was concerned with the risk to which TAS Mary and TAS Su were exposed. That teacher Ron was not struck by the chair BH threw, was fortunate, but not the outcome of any control which the defendant had put in place, in order to deal with BH's behaviour. On his evidence, teacher Ron did not even have the time to feel threatened when the chair was thrown, it happened so fast. That reaction set in later. TAS Mary who was observing what was unfolding and dealing with the other detainee in the room, had more opportunity to be concerned by what was unfolding, having sought unsuccessfully to calm BH down and then being engaged in trying to ensure that the second detainee didn't go to BH's assistance. 530 BH then pulled things off walls, threw books to the floor and attempted to knock over bookshelves in the room, which was fitted out as a library. BH refused to leave with the DJJ officers, who responded to the duress alarms, three of them eventually getting him out, with BH kicking and punching at one point, until he was removed in a relatively calmer state, having first put up quite a struggle in the room. On the evidence, by the time he was removed, he was no longer a physical threat to staff in the room, but that what he had done, placed TAS Mary at risk of psychological injury, cannot be doubted. 531 On the evidence of the DJJ officers involved, the struggle erupted into a serious fight, once BH was in the quad. At least one officer was assaulted, for which BH was later charged. 532 Who was then involved was a little unclear. Certainly Ray P and David L, who met in the quad and went to the room to join the first DJJ officer who was already in the class. Ray P's description of BH's behaviour departed from how others involved described it. His evidence was that there was no difficulty in convincing BH to come out of the room and that not much happened in the quad, although BH grabbed his shirt. I am unable to accept that as an entirely accurate reflection of the events in question, given the significant differences between what Ray P described he observed and the evidence of other witnesses, which included BH taking his shirt off in the quad and saying 'have a go'. I was left with the distinct impression that in his evidence, Ray P attempted to play down what had occurred, perhaps in order to explain his failure to later provide an Incident Report, as required by the applicable DJJ policies. 533 David L, by way of contrast, described BH as being in a rage when he first entered the room, with books everywhere, having been knocked off the shelves and BH becoming aggravated again, after initially calming. BH yelled, swore and knocked more books off the shelves, before he was escorted out of the room with both Ray P and David L having their hands on him. In the quad, Ray P tried to calm BH, but three other staff had to come to assist. Nothing got through to BH in their negotiations. As well as taking his shirt off and saying 'have a go', BH threw a punch at David L and then was taken down to the ground and handcuffed. He was still in such a rage that he had to be lifted and carried out of the quad. David L agreed that by this stage, it was like a rugby maul and that BH was swearing and yelling and making animal sounds, he was so out of control. Despite this, David L also recalls no incident report being completed, as the DJJ policies required. The evidence of TAS Su, teacher Ron and other witnesses accorded with this account. 534 Like Ray P, the Principal's description of what occurred departed significantly from that of other witnesses, who corroborated the accounts given by TAS Mary and TAS Su. The Principal entered the room as the two DJJ officers were entering; she described BH as appearing distressed; he was escorted out without force, under control, not resisting. She had a good view of what occurred outside, where there was a relatively quick and easy interaction, which seemed calm, although the Principal accepted that she could have been mistaken. She also accepted that she had heard animal noises and other youth officers responding. I am also unable to accept that evidence as an accurate account of what occurred, given the evidence of other witnesses. 535 I am satisfied that the evidence showed, to the requisite degree, that TAS Mary was exposed to a known risk of injury on 15 March from BH's behaviour that day. BH's behaviour, in class and in the quad, provided a very real basis for TAS Mary's fears for her safety. Undoubtedly, that behaviour drew to her attention in a very direct way, the basis upon which she had been trained to treat detainees, as always posing a very serious risk to her safety. 536 It may also not be overlooked that the events of 15 March followed what had occurred on 10 March, by which TAS Mary had undoubtedly already been affected, as she had by the Principal rebuffing her attempts to raise her safety concerns about what happened that day. While on 15 March, the defendant's safety system operated effectively to ensure restraint, that did not prevent the risk of psychological injury which such behaviour gave rise to, from manifesting for TAS Mary. 537 As to TAS Su, clearly her physical safety was not put at risk by what she observed in the quad that day. Nevertheless, she was undoubtedly affected by what she observed, on her own evidence and on the account which she later gave to Ms Koussa and those who later treated her. No doubt BH's rage brought home to her very directly, the kind of behaviour to which her work in class could expose her. She had been involved in violent incidents in class, in the past. This incident occurred at a time when she was aware of the Principal's refusal to respond to TAS Mary repeatedly raising her concerns about the events of 10 March and the failure of the safety systems that day. That TAS Su was affected by what she observed on 15 March, cannot be doubted. It was Ms Koussa's opinion that it contributed to the injury which she finally suffered. That opinion must be accepted, according as it did with the medical evidence and even evidence given by the defendant's experts in cross examination, as I have explained.

Should teacher Ron and TAS Mary have left the room when directed to do so by the Principal? 538 The defendant argued that it was relevant that teacher Ron and TAS Mary had failed to adhere to the Principal's direction, to leave the library and to stop observing what was happening in the quad. The Principal entered the room by a door from the admin area normally kept locked, to which she had a key, while BH was still in the library. She had heard calls for assistance over the radio. When the Principal entered, in the room were teacher Ron, TAS Mary, TAS Su, A/P Rebecca, the Principal, three DJJ officers and two detainees, including BH. At one point, as DJJ officers were struggling to control BH outside, she directed staff, including teacher Ron and TAS Mary, not to watch and to leave the library through the door by which she had entered. 539 Teacher Ron denied having failed to do as he was told. Perhaps he did not hear the Principal. Like other witnesses, his description of the events were that they were dramatic and absorbing and continued outside the classroom, with more DJJ officers responding and BH finally being pulled to the ground and being handcuffed, before being removed. TAS Mary also denied failing to do what the Principal directed. She was still dealing with the remaining detainee and thought the Principal's comment was directed to him. 540 Teacher Ron agreed that he had not been trained to physically intervene in a confrontation such as that involving BH, but said that in an emergency, or crisis, staff might be required to do so. That was consistent with the applicable Legal Services Bulletin which the Principal had provided to staff. Teacher Ron explained he was surprised, when the chair was thrown at him and that if BH had attacked TAS Mary, he would have tried to stop him, but he did not believe at the time that BH intended to hit him, or the TAS in the room that day. It was only afterwards that teacher Ron came to realise the seriousness of what had occurred. 541 Other staff outside the class also observed what happened in the quad. A/P Jon, for instance, described DJJ staff spending up to 10 minutes trying to talk BH down, without success. He was 'quite distraught, yelling and screaming'. Other observers including TAS Su and even the Principal described BH making animal noises, at one point. TAS Mary and TAS Su found what they observed distressing, as it undoubtedly was. 542 The Principal explained that she tried to have staff in the classroom stop watching, because it was unpleasant and they did not need to see what was going on. Like teacher Ron, TAS Mary did not respond to her direction. TAS Mary did not remember the Principal arriving in the room, but saw her in the doorway when she was speaking to the other detainee, when she said to him to get back from the window. On Ms Koussa's evidence, even if TAS Mary had understood the Principal's direction, to stop watching BH, if she was scared it would have been quite understandable that TAS Mary froze, no longer really able to make decisions. It was likely that a person in that position would tend to be glued to what was going on, rather than being able to detach. There was by then a big group of DJJ officers struggling in the quad with BH, where a considerable altercation developed, in which at least one DJJ officer was assaulted. Other staff including TAS Su observed what there occurred, before BH was handcuffed and carried from the quad. On the evidence there is no question that this was a very serious incident in Putland terms. BH was transferred to Kariong as a result. 543 After BH had been removed, the Principal had to tell TAS Mary not to clean up the room, or to put equipment away, but to come away with her. She left TAS Mary with A/P Rebecca, her supervisor, to give her support. It may have been better if TAS Mary had heard and reacted to the Principal's direction, which was, no doubt, well intended. On her evidence, she understood that the Principal was directing her comments to the detainee. That TAS Mary did not appreciate the Principal's direction, seems to be consistent with the description of the other Putland staff who observed this event. They all appeared to find it transfixing, a normal reaction to what was going on, on the expert evidence. 544 On the evidence, I am unable to find that either teacher Ron or TAS Mary understood that the Principal was directing them to leave the library, but disobeyed her. Even if the direction had been given and understood, that this would have been an adequate way in which to ensure TAS Mary's safety was not established.

Causal connection 545 I am also satisfied that a causal connection between the defendant's acts and omissions and the manifestation of the risk which BH posed on 15 March, was shown on the evidence. 546 The defendant operates a workplace at Putland which requires its staff to work with detainees known to engage in violent and threatening behaviour of various kinds towards staff and other detainees. They see such behaviour and are also subjected to it, as the Principal, various A/Ps and other witnesses, such as Jayne M explained in their evidence, which I outlined earlier. 547 As I have explained, the systems which the defendant had in place could not ensure that all detainees who might engage in such behaviour were identified and prevented from attending classes, despite the daily DAP system. Such behaviour was unpredictable and presented an ever present risk, which staff had to guard against. Therefore, teachers and TAS were provided with a duress alarm and a radio was also provided to each teacher, to take to class, so that assistance could be called for, if it became necessary. DJJ staff were located in close proximity, in order that they could go to a classroom, if problems arose and assistance was required. On 15 March, it was. 548 Because of the escape on 10 March, there was a reduced number of classrooms available for classes to be delivered. It was decided to permit students to attend only two classes per day, instead of the usual four, to ensure that all detainees had the opportunity to attend school. While there were risk assessments conducted in relation to the low risk programmes offered at Putland, Jayne M, who was involved in the risk assessment process, was not aware of any risk assessment conducted in relation to this change. 549 After the escape on 10 March, there had been no school until 12 March. There was evidence that detainees were very unsettled. The Putland staff were advised at the morning briefing on 15 March, that detainees generally required very, very close supervision. On A/P Amanda's evidence, this meant 'extra supervision provided by a youth officer at that point in time' and, for example, 'having the youth officer in the class'. No such additional controls were implemented generally, or in relation to BH. The usual controls, applying the School Rules and having an A/P and DJJ staff nearby in the quad, were in place. The only additional staffing was the presence of two TAS, rather than one in the General Education class, made possible because there were insufficient classrooms for all classes to be conducted. TAS staff, were not, however, present to ensure safety. That was the role and responsibility of the DJJ staff. 550 Teacher Ron had concerns about BH being given access to school that day. He was not excluded. Professor Tennant agreed that individual detainees needed to be assessed because they had different propensities for violence. Despite that being required under the defendant's written policies, it did not occur at Putland, as I have earlier explained. The January 2004 Legal Issues Bulletin envisaged that violent students would have the risk of violence dealt with by a behaviour management plan, as the 'primary measure'. Despite such a plan having been recommended for BH in November 2003, there was no such plan in place. 551 The result was that BH, enrolled in the Impact programme, was assigned to a General Education class. BH was in custody, having been charged with a number of serious offences involving violence. Jayne M agreed that he was a violent adolescent who had learned that by being violent, people backed down and give into their wants. His violence continued when he was in detention. In November 2003, he had smashed a TV in his room, when he could not get his own way; he had later threatened to smash a printer in class; he had threatened staff and grabbed a piece of paper from a teacher; and he had been confined over an incident involving points, the previous weekend. On 15 March, he became abusive over loss of points, despite TAS Mary's attempt to calm him, he then threw a chair at teacher Ron, narrowly missing his head. 552 On 15 March, teacher Ron took the class for the first time. TAS Mary and TAS Pam were present, a second TAS being available because of the reduced number of classes operating and TAS Pam being familiar with those detainees. 553 TAS Mary was in class and involved in endeavouring to get someone to take BH from class, to go to the bathroom, when he simply left, unaccompanied, contrary to the School Rules. Under the Rules, this meant he could not earn maximum points, a known trigger for misbehaviour, indeed a trigger which had led to BH's confinement over the preceding weekend. Despite this, he was allowed to return to class and was later removed by A/P Rebecca, when he became aggressive, being told that he would lose points as a result of his misbehaviour. Instead of BH then being excluded, as he could have been, he was returned again to class, where it soon became apparent that his dissatisfaction with the fact that he would not be earning maximum points that day, was the trigger for the violent and aggressive behaviour which he then engaged in. 554 A DJJ officer had been asked to be nearby this class, when A/P Rebecca returned BH. Clearly her conversation with BH had not been such as to enable the behaviour, which he then unleashed upon teacher Ron and the others present in class, to have been predicted, although A/P Rebecca was not confident, obviously, that he would behave, once returned and so she asked the DJJ officer to be nearby. This approach accorded with the evidence as to the policy at Putland to give detainees access to school and to remove them from class only as a last resort. In BH's case, that approach on 15 March resulted in the defendant failing to ensure safety. 555 Had BH's behaviour been predicted, he would, undoubtedly, not have been returned to class by A/P Rebecca. The DJJ officer who had been asked to remain nearby, was to be available to provide assistance if necessary. That this as an inadequate control in the circumstances soon became apparent. The DJJ officer felt himself unable to deal with BH alone, given BH's behaviour and so he called for further support. Plainly, that DJJ officer's assessment was accurate. 556 The evidence of the various witnesses differed somewhat as to how extreme BH's behaviour then became in class, as I have explained. It deteriorated further outside. On the evidence of various witnesses, and given his transfer to Kariong and the charge of assault laid by the DJJ, it was at the higher end of what staff were exposed to at Putland. The level 2 behaviour management report prepared by DET staff, by way of contrast, merely recommended confinement for BH and a return to School after completion of the Focus programme. No charges were laid in relation to teacher Ron's assault. 557 TAS Su was not in the class, but observed BH's behaviour in the quad, as did a number of other staff. TAS Mary was badly affected by the experience and sought medical assistance. TAS Su was also undoubtedly affected, but continued to work, until she was involved directly in an incident on 17 March. She then sought medical assistance. Teacher Ron also continued for a few days, until he too, sought medical assistance. 558 On this evidence, there can be no question that BH was in class on 15 March, as the result of the operation of the defendant's practical systems. He was permitted to return twice to class, despite failing to abide by the Rules. This resulted in him not earning maximum points, a known trigger for behaviour which put staff safety at risk. TAS Mary was directly exposed to that behaviour as a result. She was obliged to remain in class to help deal with the other detainee, while BH was dealt with by the DJJ officers, to ensure that the other detainee did not go to BH's assistance. While the defendant did not cause BH's behaviour, TAS Mary's exposure to the risk of injury which flowed from that behaviour, was unquestionably the result of the defendant's acts and omissions that day. 559 TAS Su was not directly at risk of physical injury from BH's behaviour. She observed it, however. Given what the various witnesses described as having unfolded in the quad, that TAS Su was adversely affected, cannot be doubted. She already had known concerns about her safety. This incident occurred on Monday, at a point where the Principal had repeatedly refused, up to the preceding Friday, to investigate or deal with the failure of Putland's safety system on 10 March, the preceding Wednesday. No doubt observing BH's behaviour brought home to TAS Su the magnitude of the risks which her work exposed her to, risks which had earlier manifested in classes she had been working in. 560 It was known to the defendant that repeated exposure to such incidents put its staff at risk of injury. Despite this, paper safety systems designed to protect its staff from such injury, were not in operation as I have explained. It follows that there can simply be no question that the defendant's acts and omissions were causally connected to the risk to which TAS Mary and TAS Su were exposed on 15 March.

562 There can be no doubt that this particular was made out. As at 15 March 2004, the risk in question, being injured as the result of being subjected to or witnessing violent and anti-social behaviour in class, was known. Not only was it a general risk which the defendant had sought to address in its policies and practices, on Mr Armstrong's evidence, it was a risk which was then known to have already manifested in injury suffered by other staff at Putland. At Putland, staff were frequently exposed to violent and anti-social behaviour, directed by detainees to other detainees, to DJJ staff, and to DET staff. This occurred, despite steps taken before detainees were permitted to attend Putland, despite the morning DAP system and despite the operation of School Rules, designed to encourage detainees not to engage in such behaviour. That was why DET staff were provided with personal duress alarms; teachers also had a radio and DJJ staff were located in close proximity, in order to be able to speedily render assistance to DET staff, if it was required. These were measures available to the defendant to control the risk when it manifested, the defendant not being able to exclude it. BH's propensity for such behaviour was well known and yet a required means of controlling such behaviour, a behaviour management plan, was not in place for BH. 563 It was well known to the defendant that its daily DAP system, at which detainee attendance at school each day was assessed, could not ensure that BH, a detainee who was known to be likely to engage in violent behaviour if he did not earn maximum points, was detected and precluded from going to class, on a day when he was likely to engage in such behaviour. On 15 March, BH was not excluded, despite the DJJ advising Putland staff that all detainees required 'vvcs' that day and despite his behaviour over the preceding weekend. BH was given access to class and no additional controls were implemented, for the heightened risks generally identified that day, or which ought to have been identified, in BH's case, given his misbehaviour over the weekend. 564 Neither the safety equipment available, nor the various policies in place at Putland, prevented the defendant's staff being exposed to such behaviour by BH on 15 March. The School Rules system, which was designed to operate as a reward system to encourage detainees not to engage in such behaviour, was again not effective in ensuring that it did not occur that day. Indeed, like on 10 March with TD, and with BH over the preceding weekend, the points system, a known trigger for such behaviour in BH's case, again triggered BH's behaviour on 15 March. 565 Such threats to the safety of staff was ever present at Putland, given the conduct of detainees incarcerated at Cobham. Staff were warned never to be alone with a detainee and to treat each of them as potentially violent. Staff regularly witnessed violence between detainees and detainees being restrained by DJJ staff, when they had engaged in such violence. On occasions Putland staff, including the Principal, herself, and TAS Mary, had to become involved in restraining detainees. Prior to 15 March, staff themselves had been threatened with violence and some staff had been assaulted. For TAS Mary, she had most recently been directly involved in such an incident on 10 March. TAS Su had also been involved that day when the duress alarm system failed and was aware of TAS Mary's unsuccessful attempts to have that failure investigated or addressed in the intervening period. Each morning staff received reports on detainee behaviour overnight and at weekends. In some cases the behaviour involved violence towards DJJ staff and other detainees, of such a kind that detainees were excluded from school. On 15 March, such a report was given in relation to BH. 566 That safety would generally be a staff concern at this workplace and particularly in relation to BH on 15 March, given this approach and the risks to which working with these detainees potentially posed, was no surprise. Staff constantly had to be vigilant as to their own safety, as well as that of other staff and detainees. On 15 March, this need materialised for TAS Mary, when BH's behaviour escalated entirely out of control in class, after he was returned to class by A/P Rebecca, having abused teacher Ron over his points. Despite leaving class again without permission, he was allowed to return. When informed of the result, loss of further points, his behaviour disintegrated. That day BH plainly put the safety of TAS Mary and of others present in class at risk, by his behaviour. 567 In its 'Management of Serious Incidents' policy, the DET required each workplace to 'develop or revise its own Serious Incidents Management Plan which identifies the nature and range of serous incidents to which students and staff may be exposed'. Examples of serious incidents included 'violence between students, or the assault of a student or staff member' and 'threats to the safety of students or staff, including the presence at the workplace of an individual behaving in a dangerous or threatening manner'. Violence was defined as 'intentionally causing injury or threatening serious harm to another person'. No serious incident report had emerged in relation to TD's behaviour on 10 March. There was such a report in relation to the BH incident. 568 This policy also required in the case of persons affected by an incident of violence, that:

570 Had those steps been taken after 10 March, the injuries which resulted from the 15 March incident might have been prevented. Such steps should plainly have been taken after the 15 March incident. The possibility of staff suffering a psychological injury at work was recognised by the DET in the policies, but the various paper systems which the defendant had developed to be implemented at Putland to deal with such risks, were simply not operating adequately, or in some cases, at all. The system which was in practical operation, also failed to prevent this risk from materialising. 571 This policy also required each workplace to establish a serious incidents committee, to 'assist the workplace manager in the prevention and management of serious incidents at the workplace'. There was no such committee at Putland . It was the Principal's firm attitude that safety was a matter for the DJJ. In the days preceding 15 March, from 10 March onwards, she repeatedly refused to discuss safety concerns raised by TAS Mary at meetings and which she otherwise sought to pursue with her. 572 On the Principal's own evidence, that was the attitude which she took on 10 March and subsequently, when TAS Mary and others sought to discuss with her, the failure of the duress alarm system to bring aid to her and teacher Ron that day and the circumstances in which the escape had occurred that day. The Principal's practice required that such matters be raised by staff with supervising A/Ps, but on the evidence of A/P Rebecca, TAS Mary and TAS Su's supervisor, when she sought then to pursue such matters with the Principal, she still took the view that they were matters for the DJJ, not Putland, to deal with. That was her approach in relation to the problems of 10 March, an approach inconsistent with the Serious Incidents policy, and other policies I have earlier dealt with. Had that policy been operating, the Committee's attention would have been drawn to the trigger for TD's misbehaviour - the operation of the School Rules, that same trigger which resulted in BH's misbehaviour on 15 March, which again put staff safety at risk. That risk could then have been identified and dealt with, on 15 March. 573 Apart from these policies, even under the defendant's practical safety system there were obvious steps available to the defendant, which it could have taken, to prevent these risks from materialising. It is unquestionable that BH could have been prevented from returning to class on 15 March on the two occasions when he left without permission, given that this meant that he would not earn maximum points under the Rules, a known trigger for violent behaviour in his case. 574 While BH was finally able to be restrained, albeit with difficulty in the classroom, in the quad, his outburst continued to the point where it took a large number of DJJ officers to restrain him, after he had assaulted one officer, while he was howling like an animal, events observed by both TAS Mary and TAS Su, with a result that there can be no doubt, that TAS Mary and TAS Su were put at risk of injury, as charged. 575 Particular (b)(i) of the charge provided:

b) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent detainee BH from being in the class. 576 There was no question that BH could have been prevented from attending class entirely on 15 March. The defendant's case that BH presented no risk to TAS Mary on 15 March, entirely overlooks the defendant's own safety system. Under that system, BH was a serious offender, assessed as always posing a high risk to staff, all of the time. That was why he, like other detainees, were only given access to low risk programmes. 577 The defendant's efforts were directed to detecting if BH presented a heightened risk at any time, in which event, additional controls would be implemented. While there had not been problems with BH over points at school the previous week, there was a violence in custody alert for BH on 15 March, reflecting the problems with his behaviour on the weekend, over points. On Jayne M 's evidence, BH was known to become abusive, when he did not get his own way. He had been confined over the weekend as the result of an incident at the unit, triggered by the operation of the points system. The system at Putland involved staff being notified as to which detainees were serious offenders and which posed particular risks on any day, through the system of alerts. While there was such an alert that day for BH, that alert also resulted in no additional controls being implemented for BH. 578 While BH could have been entirely excluded from class that day, he was not. It cannot be doubted that BH presented a heightened risk on 15 March, given that all detainees, including BH, had been assessed as requiring 'vvcs'. Still, no additional controls were implemented when he was permitted to attend class. 579 The DJJ could have precluded BH's attendance at class that day. He could also have been excluded by the Principal or by an A/P, as the result of the morning DAP process. None of those practical systems detected that BH would behave in such a way on 15 March, as to put staff safety at risk and they did not result in his exclusion, despite the concerns raised by teacher Ron before the class. 580 Even though not entirely excluded from school that day, BH could also have been excluded by A/P Sue, once he had left the class unsupervised, contrary to the School Rules. Given his behaviour over the weekend, that application of the points system to this behaviour, risked BH engaging in further misbehaviour in class, if he was allowed to return, was apparent, given what was then known of him. He had left the class unsupervised. Detainees were not permitted to leave class unescorted, even to go to the bathroom, as BH well knew. At that point, he was unlikely to earn maximum points for the class. Still, BH was not excluded. 581 Loss of points then led to him abusing teacher Ron and he was removed. Again, he was returned. While A/P Rebecca was still in the class, he left the class again. Even though a DJJ officer was stationed nearby, he was then permitted again to return to the classroom. Under the Rules, this was likely to result in a further loss of points, as teacher Ron had warned him. Still he was allowed to return, for points to be allocated by teacher Ron. BH then became really agitated when informed that under the Rules he would not earn a further five points, for having left class a second time. It was then that BH lost control. 582 The result was that when BH went on a rampage in the class, so as to make his loss of points 'worth his while', teacher Ron and TAS Mary were subjected to his violent and destructive behaviour. He was controlled with difficulty by DJJ staff, after reinforcement had to be called before any restraint was attempted, before being removed from the classroom, where his behaviour again spun out of control. 583 Had he been prevented from returning to class the second time, the behaviour which then involved swearing at and threatening teacher Ron, throwing a chair, trashing the room, struggling and fighting with the DJJ officers then needed to control and remove him, and the further officers required to control him in the quad, would have been avoided. The trigger for that behaviour was being told he would lose another five points. The controls used to ensure that this behaviour would not materialise were plainly inadequate, given the events as they unfolded. On any view, BH ought not to have been permitted to return to that class, if safety was to be ensured on 15 March. 584 This is not to reason with the benefit of hindsight, as the defendant argued. Rather, it is to analyse the evidence as to the risk in question, how it was controlled by the defendant, given the system by which it operated at Putland, and how it came, nevertheless, to materialise. Before 15 March, dissatisfaction with the point system was a known, recent trigger for misbehaviour for BH, a high risk detainee for whom a violence in custody alert was in force that day and who was known to become abusive, when he did not get his own way. Despite all detainees being assessed as requiring 'vvcs', no additional controls were put in place. Further misbehaviour over points materialised on 15 March. That put staff safety at risk including TAS Mary. Rather than this obvious trigger being controlled by his removal from class, the behaviour was permitted to escalate, by exposing BH further to the trigger for his misbehaviour - his dissatisfaction with the points he was earning from his ongoing misbehaviour in class. The escalation of BH's behaviour then also put other staff, including TAS Su, at risk. 585 That ought not to have occurred. Given his behaviour and what was known of BH, it cannot be doubted that he should have been excluded from class, if safety was to be ensured. There can simply be no doubt that this particular was made out on the evidence. 586 Particular (b)(ii) of the charge provided:

587 There was no issue that there was no DJJ officer present in the class on 15 March, when BH assaulted teacher Ron. It was DJJ officers who had the custodial responsibility for detainees. The DJJ had advised Putland that detainees required 'vvcs' that day. Despite this, no additional security, such as having a DJJ officer in the classrooms was introduced, even though the normal operation of the school was to be disrupted that day, with not all classes being able to be run, because there were insufficient numbers of classrooms, given the building works and the aftermath of the 10 March escape. 588 There is also no question that this was an additional control available to be taken by the defendant, to deal with the heightened risk generally identified to exist that day. That there was also heightened risk in relation to BH, given the operation of the School Rules as a known trigger for his misbehaviour, was also obvious, given what had occurred over the weekend. 589 I accept that commonsense suggests that the presence of a DJJ officer could have been an effective way of preventing the risk which BH posed, from materialising that day. Had a DJJ officer been present, he could have removed BH when he first wanted to go to the bathroom, rather than being allowed to wander out, which led to the first loss of points, which began his downward spiral. Had such an officer been present after BH was returned, that officer would have been present in class to observe and deal with BH, as his behaviour began to unravel. Such an officer could clearly have prevented a second return to class. 590 A/P Rebecca had a DJJ officer stand nearby when she returned BH to class. That was an inadequate response in the circumstances. It was the evidence that a 'vvcs' rating required a control such as a DJJ officer present in class. There was no explanation as to why that did not occur. The atmosphere amongst detainees was described as 'electric', in the aftermath of the escape. Only one detainee had been returned. It thus became known to detainees that the perimeter fence was no longer there. Classes were disrupted and the operation of Putland, was entirely out of the ordinary. 591 It was DJJ staff who had the responsibility to deal with, and if necessary remove from class, detainees who were violent or threatening toward school staff or other detainees. While DJJ officers were not usually located within classrooms, on occasions they were so placed, although on A/P Amanda's evidence, this was usually in cases where a detainee was at risk from other detainees, not where a detainee posed a risk to staff. 592 The defendant argued that it was relevant that when BH threw a chair at teacher Ron, there were four adults already present. Given that all were DET staff, under the defendant's systems, none had responsibility for ensuring safety. While throwing a chair was not expected, the defendant had to deal with detainee behaviour which was known to be unpredictable. In the case of BH, it was known that he would be aggressive towards staff and was prone to damaging equipment and that points were a trigger. 593 The risk which detainees posed in class were dealt with by DJJ officers who were ordinarily located outside the classrooms in a quadrangle, about 50 metres away from teacher Ron and TAS Mary's classroom, so that they could attend any classroom, to deal with problems which arose. On the evidence, this arrangement usually permitted a swift response from a DJJ officer, when staff called for assistance. Once BH was returned to class, a DJJ officer was stationed nearby, but not within the class. 594 On the evidence, that officer was not able to respond himself, once BH decided that if he was not going to get full points for the class, he should 'make it worth his while', because by that stage, in that DJJ officer's assessment, he alone was insufficient to be able to restrain BH and further assistance was required. On the evidence that assessment was plainly correct. 595 There was then an extraordinary episode, where BH was removed from class with difficulty and once outside in the quad, he became even further enraged, tearing his shirt off at one point, fighting with the three or four DJJ officers then required to control him, howling like an animal and having to be handcuffed and finally being carried away from what was described as a rugby maul by one witness. This was described by Jayne M as at the upper end of seriousness for Putland. That was not how the Principal or A/P Sue who wrote the misbehaviour report viewed it at the time. As I have observed, the approach of the two departments was quite different. I am entirely unable to accept the DET's view of this incident. 596 In the light of all of the evidence, the defendant's submission that there was not a sufficient basis for concern about BH, to lead him either to be excluded from school that day, or to implement additional control measures over and above what was already in place, cannot be accepted. There can be no doubt, that this particular was established. iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee BH, which required consultation with the teacher and the TAS allocated to the class, provision of the history of BH, assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. 597 Again, this particular was concerned with the failure to have a formalised individual risk assessment for detainees, such as BH, using a tool such as Hazpak, and instead, assessing all the detainees as presenting the same, generalised high risk for staff safety. Undoubtedly, as at 15 March 2004, there was no individual assessment in relation to BH, despite what the defendant's policies required. There was not even an individual behaviour plan, which had been recommended and was required under the applicable policy. 598 There was extensive evidence as to the defendant's approach to the assessment of risks at Putland, which changed over time, becoming more formalised. Detainees were also the subject of ongoing assessment as to the risk which they posed by the DJJ, through various systems which it operated and which I have described. 599 The evidence was that over time, the DET changed its approach to risk assessment, with the introduction of a formalised system of risk assessment for the various programmes conducted at Putland. All programmes offered were assessed to be low risk. By March 2004, a formal assessment of programmes was still underway, but formal assessment of detainees' participation in those programmes was not. This changed later in 2004. In March 2004, all detainees were assessed as presenting a high risk, thus only being entitled to access low risk programmes. I have already described the deficiencies with this approach, in relation to the earlier charge. 600 The General Education class undertaken by BH on 15 March was assessed as involving a low risk. BH had not been taking such a class, he was enrolled in an Impact class, another low risk programme. There was no evidence of any formal risk assessment of the change introduced after the escape, which involved BH being sent to take this General Education class, rather than the Impact class. On 15 March, other detainees were removed from the class during the course of the morning, not being willing to participate and later, BH engaged in violent behaviour, which had not been predicted by any assessment undertaken by the defendant before the class was undertaken, despite the DJJ assessment that all detainees required 'vvcs' and the violence alert that day for BH. 601 BH had successfully undertaken Putland's entry programmes. The risk assessment processes operated by the defendant as to the composition of the General Education class at any time, or BH's participation in it, on 15 March, occurred through the daily assessment made through the processes which culminated in the Putland morning briefing and the production of the DAP sheet, as to detainee attendance at school that day. It was during this process, which took about 30 or so minutes, that all detainees' access to programmes that day was assessed. This involved up to 60 detainees. 602 As I noted earlier, there was an issue between the parties as to how those processes operated in practice, what information was, in fact, provided at the DAP meeting to staff about the detainees to be in their class each day; and the real ability of staff to raise and have addressed, any concerns about a particular student participating in their class. That the defendant's practical system was inadequate on 15 March, was established. Teacher Ron's concerns that day did not lead to BH's exclusion or any other controls for the heightened risk he presented; not even the DJJ advice that all detainees required 'vvcs', led to any increased safety measures, given the heightened risk actually identified for all detainees. 603 Certain information was provided to staff through the system of 'alerts', which were the product of a DJJ computer system and ongoing assessments about detainees and their behaviours, made by DJJ staff. The alerts were communicated to DET staff through a whiteboard located in the general office. Alerts were notified in a document known as the bed sheet, delivered each morning to Putland. The alerts were then placed on the whiteboard, or alterations affecting detainees, who were already on the whiteboard, were made. Staff were required to keep aware of alerts. Teachers were obliged to note the alerts each day in their Day Books. 604 The alerts dealt with matters ranging from medical, such as asthma or epilepsy, to concerns such as a detainee being at risk of self harm, or an escape risk, to detainees who had a history of violence in custody. There was also a system of noting detainees who were serious offenders. 605 The evidence was that the alerts were not always updated until after staff had gone to class. The morning briefing had to be attended by all staff. It could take up to 30 minutes and continued until everything necessary had to be dealt with. The result was that staff could then only have a short period of time between the end of the meeting and the beginning of class. If the alerts were not updated before they went to class, the result was that staff were not provided with relevant information until later in the day. 606 The evidence was that a copy of the bed sheet was kept in the office, near the whiteboard and that staff were able to have access to the bed sheets, which included information as to which detainees were serious offenders and what they were charged with. Staff were encouraged to view this information as not being relevant to them. This was consistent with the Principal's evidence. 607 There was a violence alert for BH on 15 March. Teacher Ron raised having BH in his class that day, at least with A/P Rebecca. His concern was not accepted and he was required to take BH. No part of the defendant's safety systems had predicted BH's behaviour that day. Nor had the heightened risk which flowed from his attitude to the operation of the School Rules been identified, despite what had occurred over the preceding weekend or the resulting alert. This was so, even though on Jayne M's evidence, it was already known that the School Rules were not an effective way to control BH's behaviour. To the contrary, they were a known trigger for behaviour which put staff safety at risk. That the alert system was an ineffective control mechanism in his case was soon confirmed in the classroom. Had a behaviour management plan been in place for BH, as the defendant's policies required, this risk and how it could safely be dealt with, could have been identified and addressed. 608 I am satisfied to the necessary degree that the risk assessment of BH was entirely inadequate on 15 March and that this aspect of the particular was established. The allegation as to the inadequacy of the risk assessment in relation to composition was not established, however. The evidence did not establish that the composition of the class in which BH participated that day, was causally connected with the manifestation of any risk of injury for TAS Mary and TAS Su, on 15 March. It was BH's presence in class and the risk which he posed, not that of other detainees, which led to the manifestation of this risk.

c) The psychological injuries to TAS Mary and TAS Su were a manifestation of the risk. 614 On the evidence, this particular was also established. The defendant accepted liability for TAS Mary and TAS Su's workers compensation claims, which were investigated by Ms Koussa. 615 Not only were teacher Ron, TAS Mary, TAS Pam, A/P Rebecca and the Principal exposed to BH's violent behaviour in class that day, so were other DET staff, including TAS Su, when BH was removed to the quad. The evidence leaves no room for doubt, that TAS Mary's injuries resulted from the risk to which she was exposed on 15 March, as I have explained. 616 The defendant argued that TAS Su, outside the class and not at physical risk from BH's behaviour, was merely subjected to witnessing a distressing event, necessary to ensure staff safety, when BH required restraint. That this was a violent and distressing confrontation, is undoubted, given the evidence of various witnesses who observed it, as well as those involved in it. 617 It was well known to the defendant that exposing its employees to such situations carried with it the risk of injury, including psychological injury, even if the violence was not directed at them personally. That risk was addressed in the defendant's written policies. That this event, as it unfolded, could give rise to such an injury manifesting, even for those merely observing what occurred, was foreseen. That it was necessary to deal with BH at that point, given the defendant's failures to preclude BH from class, which gave rise to that need, is not a basis upon which it can be concluded that this particular was not made out so far as TAS Su was concerned. That others who witnessed this situation were not injured and TAS Su was, also cannot lead to that conclusion, as was argued by the defendant. On this point, the evidence of Ms Koussa and the treating doctors must be accepted. 618 In its case the defendant also criticised teacher Ron, TAS Mary and TAS Su for watching what was occurring with BH outside the classroom. I have dealt with how the Principal's direction was not heeded, unsurprisingly, by teacher Ron and TAS Mary, given the situation in the classroom. There was no evidence that such a direction was given to other staff not to watch what was going on in the quad and there was no criticism directed to them for watching what occurred. To the contrary, it was TAS Su's evidence that DET staff were required to observe how DJJ staff dealt with detainees at Putland. Potentially they were witnesses, in the event that any detainee complained. 619 That a direction to leave and not to watch was not an adequate way to control the risk to which the staff were exposed on 15 March, was abundantly clear. I am unable to accept that the staff can fairly be criticised for their reaction, particularly when consideration is given to the Principal's description of them and their work, over the years of their employment. 620 As at 15 March, it was well known at Putland that TAS Mary and other staff, including TAS Su, shared serious concerns that staff safety was being put at risk at Putland. It was well known that other staff had already suffered injuries while working there. The events of 15 March, followed on the heels of the events of 10 March and how TAS Mary's repeated concerns about the escape and the problems with system failures that day had been deflected and refused to be discussed. Undoubtedly, what occurred on 15 March with BH resulted in the manifestation of this risk and contributed to the psychological injuries which TAS Mary and TAS Su both suffered. 10 - 17 March Matter Number 1392 of 2006

The allegation that the place of work was psychologically unsafe 634 Section 8 of the OHS Act does not refer to a psychologically safe, or unsafe, place of work. It is rather concerned with ensuring that any premises controlled by the employer, where employees work, are safe and without risks to health; that any plant or substance provided for use by employees at work is safe and without risks to health when properly used; ensuring that systems of work and the working environment of employees are safe and without risks to health; that information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, is provided; and with providing adequate facilities for the welfare of the employees at work. 635 It was the prosecutor's case that if a psychologically unsafe place of work existed, an employer had failed to ensure employees' safety at work, as s 8(1)(c) required. Such a place of work did not provide a safe working environment, which did not risk employees' health. There is obvious force in that argument, particularly having in mind the defendant's written policies, directed to ensuring the psychological health of its employees. 636 In resisting this approach to the construction of the section, the defendant relied upon common law concepts of 'known susceptibility' or 'vulnerability', 'in the sense that the risk of psychological injury to a person could be reasonably said to be known or within the knowledge of the employer'. It argued that this charge was novel in this jurisdiction and that in truth, the particulars of the charge could best be described as 'vocational dissatisfaction' felt by TAS Mary and TAS Su, in relation to the Principal, rather than being causative factors of occupational stress. 637 On the evidence, it must be accepted that the matters referred to in the particulars of the charge undoubtedly resulted in TAS Mary and TAS Su being strongly dissatisfied with the Principal's approach to their safety. That the events which gave rise to such dissatisfaction might also have involved exposure to a risk to safety, which caused psychological injury, cannot simply thereby be excluded. Dissatisfaction with a person who is responsible for the state of affairs which led to an employee being injured, is hardly surprising and cannot of itself be evidence that an offence has not been committed by an employer. The real issue is whether there was exposure to a risk to safety which resulted in psychological, or physical injury of the employee who also felt vocational dissatisfaction, as a result. 638 The duty imposed by the section does not envisage that before an offence is committed, an employer must be aware that a particular employee is at risk of suffering a psychological injury. The statutory duty requires an employer to be proactive in ensuring that no employee suffers such an injury, whether or not the employer is aware that a particular employee has a particular susceptibility or vulnerability to such an injury, although that might be a matter relevant to a defence. 639 The difficulty with the thrust of much of the defendant's arguments about vocational dissatisfaction and employees not putting it on notice that they were not coping at work, was that they failed to have sufficient regard to conclusions reached in binding Full Bench authority. That included what was said in Daly Smith Corporation (Aust) Pty Limited v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 at [45]:

The absence of social support producing a psychological injury 640 It was argued for the defendant that the prosecutor had not established that the absence of social support relied on, could produce psychological injury. This followed because, on the evidence, psychological injury arose in one person after a critical incident, but not in others present, such as was the case on 15 March, when TAS Mary sustained an injury, but TAS Pam, who was also present, did not. Similarly on 17 March, that TAS Su was injured but not teacher Mauro, who TAS Su was working with that day, demonstrated that the necessary causal connection could not be established. 641 I am unable to accept these submissions. It was common ground amongst the experts and contemplated by the defendant's own policies, that there was a risk of psychological injury being sustained, when employees were repeatedly exposed to acts of violence and threatened violence and other anti-social behaviour by detainees at Putland. The absence of adequate social support did not itself give rise to the risk of injury here in question. Social support was a way in which the defendant could control such a risk, if it could not be eliminated, that risk being one not created by the defendant itself. 642 It follows that if it is found that the necessary social support was not being provided, with the result that when the risk in question materialised, an injury resulted, the defendant's failure to have in place an available way of controlling the risk, will establish the offence. The fact that the risk materialised with the result that an injury was sustained by some employees exposed to a particular critical incident, but not others, is not evidence that the risk did not exist, or that it did not manifest, or that it was controlled. Rather, it reflects the evidence that those employed in a working environment such as this, where they are repeatedly exposed to such incidents, may be injured by such repeated exposure and that the precise incident which will result in the injury manifesting in a particular individual, is not predictable - 'the straw that breaks the camel's back' analogy used by various of the witnesses, or what makes the glass 'finally overflow', used by others. 643 It is in that light that certain of Professor Tennant's evidence in cross examination becomes particularly relevant. He agreed for example, that the defendant's written safety policies ought to have been implemented at Putland. He agreed that managers ought to have been trained to recognise employees who were not functioning or who were showing signs of distress and that they should have done something about such a situation, if it was identified. He also understood that staff attended regular meetings where they had 'every avenue to discuss critical incidents.' Even the Principal's evidence established that there was no foundation for that view of how Putland operated. 644 In fact, in her advice to Ms Koussa, the Principal identified that both TAS Mary and TAS Su were at risk of injury. The defendant's polices recognised that social support being provided to Putland staff, was a way of controlling the risk of injury to which staff were repeatedly exposed. These policies were not operating, to the contrary, the approach being adopted by the Principal, was undermining the system which was operating.

Cumulative trivial stress 645 The evidence of Professor Tennant was that cumulative trivial stress may contribute to an adjustment disorder, but that may be regarded as an abnormal or exaggerated stress response, which could not be predicted, unless the employer was aware of the vulnerability. 646 The difficulty with this evidence was that I am unable to accept that the stress to which TAS Mary and TAS Su were subjected in the course of their employment, given the violence and threatened violence they were always at risk of, can properly be regarded as trivial. Each detainee was regarded by the defendant as giving rise to serious safety risks for its employees. When those risks materialised between 10 and 17 March, there was nothing trivial about what occurred. For TAS Su, what she was exposed to was, undoubtedly, less serious than what TAS Mary experienced. Nevertheless, on the evidence, it must be accepted that even what she was exposed to in this period, given her then known anxiety as to her safety at Putland, was sufficient to have given rise to a risk of injury. 647 It was Dr Brown's evidence that cumulative stress, which resulted in psychological injury, could not be detected by an employer, who could only say retrospectively that something had precipitated a particular injury. He explained that the intent of systems like the defendant's EAP was thus to help stop such problems escalating and thereby preventing psychological injury. 648 Dr Lamarque's evidence was that on his understanding, TAS Su had functioned well and coped at work until March 2004. She then had concerns about safety issues and was not comfortable, but it was when she witnessed the assault on 17 March, that she finally had a very strong reaction which developed into post traumatic stress disorder. That view was entirely consistent with those of the Principal and finally of Dr Brown and Professor Tennant in cross examination, as to how her illness could be explained, given her experiences at work. The proper safety systems designed to detect and prevent psychological injury to those becoming increasingly at risk of such injury, was simply not operating at Putland. 649 The defendant's approach in its paper policies, recognised that repeated exposure to violence, threatened violence and other anti-social behaviour, put its employees at risk of injury, both physical and psychological. The defendant had an obligation to prevent such an injury manifesting. That obligation had to be met, irrespective of whether or not the defendant could predict which particular incident might finally result in an injury being sustained by a particular employee - be it a physical injury, or a psychological injury, or indeed both. That was certainly why the defendant's systems included giving employees access to social support of various kinds, including the EAP system. The policies also expressly required the support of the Principal, who was given particular responsibility for identifying and dealing with those at risk of psychological injury at Putland. This was because it was entirely predictable and indeed predicted, that employees would be injured by their experiences at this workplace, without such measures being implemented effectively. 650 This did not occur at Putland, despite the Principal and the supervising A/P having each identified that all was not well with either TAS Mary or TAS Su, before they finally left work, injured. It follows that the submission that there were no indicators specific to TAS Su and TAS Mary that they were not coping in their role as a TAS, is simply not open on the evidence.

654 Instead, consideration was given to detainee exclusion at DAP meetings and during the course of a day. Exclusion of a detainee from a class was regarded to be a serious measure, on the evidence, one staff were generally reluctant to resort to, given the importance of detainees at Putland being given access to education. 655 Otherwise, additional available steps such as having a DJJ officer stationed in the classroom, for instance, was also available to be considered, but not often implemented. This measure seems only to have been used when one to one supervision was deemed necessary for an individual detainee, identified as at risk of violence from other detainees. It was not implemented when staff were identified as being at heightened risk - even for example, with BH on 15 March. On 10 and 15 March, TD and BH were each returned to class after being removed for having engaged in behaviour which on any view, put staff safety at risk. Not only had both TD and BH put TAS Mary's safety at risk by their threatening behaviour, they had both assaulted teacher Ron. This was only possible because both were permitted to return to class. 656 The undoubted result so far as TAS Mary was concerned, was a psychological injury. So far as TAS Su was concerned, she was already concerned about her safety at Putland; she then observed TAS Mary's repeated failure to have a serious failure of the safety system on 10 March discussed and addressed by the Principal. She also then observed the unfolding of BH's meltdown in the quad on 15 March, after he had been removed from class by three DJJ officers who were then unable to control his further outburst and had to receive further assistance, before he was able to be controlled and removed. On 17 March, another incident occurred in the class in which TAS Su was working. 657 Given the evidence of the regularity with which incidents arose at Putland, where staff safety was put at risk in classes, despite the measures in place to deal with incidents, once they arose, that the daily method adopted for risk assessment of individual detainees at morning briefings, was not of itself capable of ensuring safety, was quite clear. That system did not change, until after the events of March 2004. On 17 March, the system again did not identify that the detainee involved in the incident in TAS Su's class that day, would attack another detainee. While that detainee was adequately dealt with under the defendant's practical system, once his violent behaviour erupted, it was this incident, of a low level itself, so far as TAS Su was concerned, which triggered her injury. 658 Despite the defendant's submissions as to the operation of its practical safety system, it may not be overlooked that it also had various other practices and policies in place, designed to prevent the risk of any psychological injury materialising, notwithstanding the violence and threats to which staff were repeatedly exposed at Putland. As I have explained, the evidence showed that aspects of those practices and policies were not adhered to at the relevant time and that the defendant otherwise failed to prevent the risk of injury materialising, in the case of TAS Mary and TAS Su, in accordance with the paper systems which it had designed to deal with this risk. On 17 March, TAS Su's exposure to this further incident, resulted in her injury.

659 I have earlier outlined the experts' evidence. The parties' each advanced criticisms of the expert evidence called by their opponents. I dealt with that directed to Ms Knox Haly, earlier in the judgment. Some of that criticism had a foundation, as I have found. 660 The prosecution's criticism of Professor Tennant's evidence and the conclusions which he came to, were directed to the way in which he had been instructed, having been provided with volumes of material, including transcripts and documentary evidence, with the result that there was no way of knowing, it was argued, what material the various opinions he had expressed had been based upon. It was also argued that his cross examination showed that he had not read all of the material with which he had been supplied and that he had not appreciated crucial factual material, which could have been gleaned from material he had been supplied with. The result was that the Professor had not appreciated how systems at Putland had operated in practice and was not aware of relevant factual material, when preparing his reports. Similar criticisms were directed at the evidence of other of the defendant's experts, including Dr Brown and Mr Rees. 661 The way in which the Professor's report had been produced was also attacked as leading to the result that it was not the independent product of an expert, uninfluenced as to form and content, by the exigencies of litigation. 662 It was the defendant's case that the criticisms of its experts had no foundation and that it was necessary to determine what the nature of the psychological injury sustained by TAS Mary and TAS Su was, because there could be different causative factors at work, depending on the nature of the injury. This was because the prosecutor had to establish 'sufficient causative link between the absence of social support as particularised in the charges and the manifestation of psychological injury.' 663 It was also argued that the defendant's expert evidence was called by reference to a set of factual assumptions, which remained valid and that the prosecution's experts had been given factual assumptions, which had not been made out, which meant that Ms Knox Haly's evidence could not be accepted. It was also argued that the factual material put to the experts in cross examination by the prosecution, was inaccurate or incomplete. 664 It is convenient to observe at this point that, of course, each of the expert's opinions and conclusions must be considered in the light of the conclusions reached on the evidentiary contests between the parties. That must have an impact, given that the experts each gave reports, expressed opinions and were cross examined, before those conclusions were reached. 665 Given these controversies, initially, from the written reports, it seemed that there was a substantial gulf between the opinions of the various experts. Nevertheless, those differences diminished in cross examination, as I earlier explained. 666 The evidence addressed the question of the social support actually provided at Putland and the experts were each cross examined about what that evidence had showed, on the basis of assumptions which they were invited to make. 667 The evidence dealt both with what had occurred, and, particularly that led in the defendant's case, what social support was provided at Putland, as a part of the defendant's practical systems. The prosecution case also addressed the paper systems intended to be operated at Putland, which were also concerned with employees being provided with social support, in order to protect them from psychological injury. That evidence revealed deficiencies, where certain of the defendant's safety policies were not operating as intended, as I earlier explained. That evidence, as well as the expert's opinions of these various systems, is all of relevance to an assessment of whether this charge, as particularised, was made out.

Inadequate management support 668 It was the prosecutor's case that on the evidence, it had been demonstrated that the risk of psychological injury being sustained by staff such as TAS Mary and TAS Su, was increased by the absence of, or inadequate, management support being provided to employees at Putland, to help them cope with what they were being exposed to, when working with detainees in class. This was disputed by the defendant. 669 It was the prosecutor's case that the expert evidence showed a body of literature and research into the link between such social support and its ability to mitigate occupational stress and employee susceptibility to psychological injury. 670 It was the defendant's case that the literature suggested that psychological injury could be linked to specified factors in a workplace, (alone or in combination), but that the mere existence of such factors did not establish the necessary causative link, for the purpose of criminal proceedings. General indicators such as staff morale, complaints, absenteeism, workers compensation claims, incident reports, school atmosphere and questionnaires were relied upon in the prosecution case, it was argued, because it had failed to establish any indicators from either TAS Mary or TAS Su, that were sufficient to have alerted the defendant that they might be at risk of injury, at the relevant pleaded dates. 671 I am unable to accept that argument. The defendant's policies recognised that its employees were at risk of psychological injury. Consistently with the requirements of the OHS Act, its policies also envisaged that staff would be able to raise and have safety concerns dealt with. It was the common view of the experts that management support, when employees had such safety concerns, would assist them in coping with what their work confronted them with, so as to prevent injury, although there was disagreement between them as to whether what was in place at Putland, provided the necessary support. Plainly, the provision of such support was a practical, proactive way by which the defendant could have protected its employees from sustaining a psychological injury. (See WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85.) 672 The evidence clearly showed that various of the defendant's paper policies, as well as various of its systems, were designed to ensure that adequate management support was provided to its employees, so as to ensure their safety and to prevent psychological injury, given that the risk which detainees' violence and other threatening behaviour posed, could never be entirely precluded. The implementation of these policies at Putland depended on the Principal. It was with this evidence in mind, that Ms Knox Haly's view, that even good social support provided by supervisors such as an A/P, could be undone by the absence of such support from a Principal, must be considered. To my mind, that is not only obvious, as a matter of logic, but on the evidence, an unavoidable conclusion. The defendant's practical system required safety concerns to be raised by a TAS with an A/P, yet the Principal dismissed and did not deal with these concerns, when raised with her by A/P Rebecca, who was TAS Mary and TAS Su's supervisor. In their evidence they each described their attempts to have their supervisor raise their concerns with the Principal. A/P Rebecca's evidence confirmed her failure. The Principal also repeatedly rebuffed attempts to raise such matters directly with her, even in relation to the system failures on 10 March. The evidence clearly showed that the required management support was not provided at Putland, at the relevant time, so far as TAS Mary and TAS Su were concerned. 673 The evidence was that safety was known at Putland to have been a matter of ongoing concern to staff, including TAS Mary and TAS Su, in the period leading up to the events in March 2004. Some staff were fearful. There was evidence that A/Ps had raised safety issues of concern to staff, with the Principal, who had dismissed them. A/P Rebecca, for example, explained in her cross examination that she had raised the question of concerns about the mix of students in class, the numbers in class and particular students in class and staff concerns about managing them and that the Principal's response was 'Maybe these people are in the wrong place, or wrong school, (sic) shouldn't be working here.' The concerns were not addressed or resolved. 674 Both the Teachers Federation and the PSA had pursued disputes about safety matters; staff had directly raised concerns with their unions about how the building programme was impacting on their safety in a number of ways; some staff had already taken stress leave, or had made workers compensation claims, for injuries suffered at work; there had been requests for staff to receive personal defence training, which the Principal had investigated, but had not been able to arrange. On Mr Armstrong's evidence, the defendant's District Office was also aware that psychological injuries were being sustained by staff at Putland. 675 There was no evidence of any steps taken by the defendant to investigate this situation at Putland, or to take any additional steps, to ensure that the safety of employees such as TAS Mary and TAS Su, was not being put at risk, given the way in which Putland was operating. 676 In Ms Koussa's report in relation to teacher Ron, Ms Koussa noted that the Principal denied any awareness of the 10 March incident and that she had told Ms Koussa, that she would need to investigate it further. On the evidence, the system in place at the school involved teachers and TAS providing misbehaviour reports immediately after an incident. Teacher Ron and TAS Mary's report was received by the A/P by 12.08 pm that day. A copy was kept in a folder at the school, so that it could be read by the Principal. The Principal never reading this report, explains perhaps why she gave the Department no serious incident report about the failure of the duress alarm system, as was required, and repeatedly brushed off TAS Mary's attempts to discuss with her, the failure to respond to the duress alarms sounded that day by teacher Ron and TAS Mary. Given, however, her own evidence of her conversation with teacher Ron on 10 March, when the Principal claimed she had advised him that he had been assaulted, her advice to Ms Koussa that she was not aware of the incident, cannot have been accurate. 677 Ms Koussa noted the Principal's view that teacher Ron was generally scared of students, which was reflected in how he allocated points, namely 'to prevent students from becoming angry'. This approach was inconsistent with the School Rules, on the evidence, but seemingly, was another matter which the Principal did not address. If true, it reflected a situation where the School Rules were known not to be operating in a way which could have ensured safety in teacher Ron's classes, where TAS Mary worked. 678 The Principal told Ms Koussa that she did not believe that teacher Ron's personality suited the Putland working environment. Contrary to what the Principal told Ms Koussa in relation to TAS Mary, she said in relation to teacher Ron, that 'incidents are many and go with the territory' of working with these students. This was undoubtedly correct, but the contradiction between this and what she had told Ms Koussa in relation to TAS Mary, namely that there were 'fewer critical incidents' at Putland and that 'staff tend to overreact when an incident occurs', was curious, particularly given that teacher Ron and TAS Mary worked together, delivering the General Education programme and had been involved in the same incidents in March 2004. Despite these views, it seems that the Principal also did not detect that teacher Ron might be at risk of psychological injury at work. She did note, however, that he had become increasingly concerned about the safety of staff working at the school and that he was a union representative. 679 As to TAS Mary, the Principal told Ms Koussa she regarded TAS Mary's capacity to be in difficult situations, to be declining, that she felt more hesitant and less safe and that it was overdue for her to look elsewhere for work 'for her own well being'. 680 A/P Rebecca was also nominated to speak to Ms Koussa about teacher Ron and TAS Mary. She told Ms Koussa that cumulative factors had led to teacher Ron leaving the school, including his treatment by another A/P, who had left at the end of 2003; a series of incidents of abuse of staff and the loss of his assistant TAS Mary, after the 15 March incident. She noted that on 10 March, the school had been left vulnerable, because many staff had responded to the assistance call regarding the escapees, leaving 'support thin on the ground'. This may explain the Principal's evidence, that immediately on her return to the School on 10 March, after pursuing the detainees, she was informed of a directive by Mr Muir of the DET, that in future, staff were not to leave Cobham in pursuit of escaping detainees. 681 A/P Rebecca told Ms Koussa that TAS Mary's work was excellent and that she was a very valued member of staff who had a 'big thing' about safety, but that the Principal did not acknowledge or support her concerns. The Principal did not regard the 10 March incident as serious, but that in her view, that incident and the 15 March incident were extreme. 682 In relation to TAS Su, the Principal expressed the view that she had problems 'working with our sort of kids'. She had understood the risks of working at Putland on an intellectual, but not emotional level, until directly involved in an incident. This was true of many staff. She also said TAS Su had problems forming relationships with detainees and indicated to them that she did not trust them, acting as a gatekeeper, rather than a support person. The Principal explained that the 15 March incident and the bomb scares were 'par for the course' at Putland and that she could not see how they would affect TAS Su, who was not directly involved. She could not remember an incident in which TAS Su had been involved the previous year. The Principal explained that a number of people raised concerns about feeling unsafe, including TAS Su, who spoke out at staff meetings. Yet, the Principal had not observed symptoms of distress on her part, other than 'the odd occasion where TAS Su was teary and felt like she was not coping', but not directly before she left in March 2004. The evidence was contradicted by Jane M and A/P Rebecca, who each described the BH incident as extremely serious, as it must have been, given his transfer to Kariong. 683 A/P Rebecca was nominated to speak to Ms Koussa about TAS Su. Her advice was that TAS Su felt undervalued and unsupported by the Principal, because safety was not changing at Putland. Some staff did not feel safe and TAS Su did not feel heard, when she raised safety concerns at staff meetings. She was a bit of an advocate for safety in meetings. The Principal cut her off and did not allow her to finish comments in meetings. A/P Rebecca's view was that the incident in TAS Su's class on 17 March was not a major one, but earlier there had been a series of extreme incidents. One in 2003, where there had been a fight between two students; the 10 March incident; the bomb scare and the 15 March incident. A/P Rebecca described TAS Su's behaviour on 17 March, after she left class and stated that 'What people do to survive here is leave, they don't see it changing'. 684 Ms Koussa's reports also confirmed that in March 2004, policies which were designed to ensure staff at Putland were not injured at work, were not in operation. Given the views which she expressed to Ms Koussa, the Principal was plainly aware that TAS Mary and TAS Su were both at risk of injury, in March 2004. 685 Had the defendant's 2000 'Guide to Occupational health safety and injury management', been in operation at Putland, steps which would have dealt with the risk so identified, would have been taken. That policy provided that 'stress is considered a psychological hazard and, within the context of a workplace risk management system, must be identified, assessed and controlled where possible'. It also required the Principal to know hazards in the workplace; to find ways to eliminate or control them; to warn employees about the hazards and to train them in safe work practices. 686 The evidence can only lead to the conclusion that the Principal was clearly aware of the hazards at Putland to which TAS Mary and TAS Su were succumbing in March 2004, given the risks to which they were repeatedly exposed at work, but did not act to deal with what she had become conscious of. The necessary management support of staff was absent. It cannot be doubted that the necessary causal connection between the defendant's acts and omissions, and the risk of injury to which TAS Mary and TAS Su were exposed in the period of the charge, was established.

Was it necessary for the prosecution to establish that TAS Mary and TAS Su had symptoms of psychological injury, or a known susceptibility to such injury, before it was sustained, in order to make out the charge? 687 Despite what the Principal's advice to Ms Koussa actually revealed, namely, that their susceptibility to psychological injury had become apparent, I accept that it was not necessary for the prosecution to have demonstrated that the defendant had, or should have detected that TAS Mary or TAS Su were not psychologically coping at work, before they were injured in March 2004. The OHS Act requires employers to be proactive as to ensuring safety and not merely reactive, when employees raise concerns, or injuries occur. They certainly must act, upon becoming aware that particular employees are at risk of such injury. 688 On the evidence, it was known to the defendant that its employees may not themselves be aware that they were sustaining such injuries. It was thus not necessary that TAS Mary or TAS Su make it known to the defendant that they were vulnerable to psychological injury, or that they could no longer perform their work safely, in order for the defendant to commit an offence under the OHS Act, or for the prosecutor to be able to establish that an offence had been committed. 689 In any event, it was known that employees including TAS Mary and TAS Su were raising concerns about their safety and, given what the Principal told Ms Koussa, she had the view in March 2004, that neither TAS Mary nor TAS Su were coping adequately with what their work required of them. Given that opinion, the Principal's failure to take any steps, undoubtedly, available under the defendant's various policies, to deal with her views that they were not coping, and her repeated refusal to deal with the safety concerns which they sought to raise with her, including in relation to the serious failure of the safety system on 10 March, left the defendant in a position where it could not sensibly be argued that it had no forewarning that TAS Mary and TAS Su, were not coping psychologically and were at risk of psychological injury. 690 The DET had in place a policy requiring stress management and injury prevention. It was not operating. On the Principal's evidence, neither she nor the other executive staff had been trained in how to apply that policy and, it seems, instead, the Principal simply sought to apply commonsense, rather than what this policy envisaged, in order to detect anyone who was no longer coping and was at risk of an injury. That evidence was corroborated by A/P Jon and other A/Ps. Given what the Principal told Ms Koussa of her perceptions of TAS Mary and TAS Su, she then believed that they were either not suited to, or coping with, the work of a TAS at Putland. Yet she did nothing, it would seem, to act on the concerns which she in fact had, other than perhaps to treat them in the way described by others, belittling them when they sought to raise their concerns, brushing them off and refusing to answer their questions of her. 691 Perhaps in this way, the Principal sought to make a move from Putland attractive to TAS Mary and TAS Su. Certainly it became attractive to A/P Rebecca, their supervisor, who described her reasons for leaving Putland as her concerns about safety and that nothing was being done to address them. A/P Rebecca had no success in having their concerns addressed. There was evidence that even the school counsellor experienced the same difficulty. It became apparent that TAS Mary and TAS Su were being affected by this situation, yet it was not addressed. 692 In so far as any responsibility for stress management was delegated to the A/Ps who had a supervisory role for other staff at Putland, they also had no relevant training or instruction, in dealing with such matters. It was the Principal's evidence that how the supervision was provided by a particular A/P to the A/P's supervision group, was a matter left entirely to them to determine. So, it was, for example, the evidence of A/P Jon that while he appreciated that supervisors had a role to play in detecting warning signs that staff might be suffering from psychological injuries, of which they were not themselves aware, it was still left to individual staff to report to their supervisor, if they felt stressed. 693 Consistently with this evidence, it was the evidence of A/P Rebecca that she had noticed before these events in March 2004, after which TAS Su took sick leave, that she was not herself and seemed withdrawn. This did not lead to any action being taken at Putland, to ensure that TAS Su was not suffering from any injury, or vulnerable to one. 694 Further, while the system of teacher Day Books theoretically provided a means by which a teacher might convey such information to a supervisor, the Day Books were not always used for the purposes for which they were designed and supervisors were not, in fact, required to look at them. The Principal agreed that she never audited how the supervision groups were operating, even though the defendant's Occupational Stress Hazard Identification and Risk Management Strategy, contemplated regular monitoring, reviews or audits of Putland's stress management strategy. Nor was she aware of how individual A/Ps had organised their supervision groups. On A/P Rebecca's evidence, the concerns expressed by teacher Ron about his safety and his difficulty in coping, in his Day Book, were not read. That was not her practice. On TAS Mary's evidence, while she had good working relationships both with teacher Ron and A/P Rebecca, there was, in fact, not even any regular practice of the members of her supervision group meeting with its A/P. 695 That teacher Ron's entries in his Day Book provided the defendant with another indication that staff, including TAS Mary, were vulnerable to injury, was clear. There, he said for instance: AWFUL WEEK. Everyone's going on about my fat bell. Mary was scared by TD on Wednesday, 3 escapes, boring long meetings, arguments, confrontations with principals, losing votes and voting alone, and my son giving up his trade. The boys hate me unless I give them points the(sic) have not earned, everyone's manipulating and manipulative, I might be going mad, maybe everything's ok.

The approach that safety was a matter for the DJJ to ensure and the events of 10 - 15 March 699 The Principal's general approach was that safety matters were not matters for the DET, but for the DJJ. On her own evidence, she refused to discuss such matters with staff, when they raised them direct with her. She even refused to discuss the failure of the duress alarm system on 10 March, which TAS Mary and teacher Ron both sought to raise direct with her, that day and subsequently in staff meetings at which TAS Su was present. The general rule was that safety concerns had to be put in writing, to be provided to a supervising A/P to deal with. On the evidence of A/Ps such as A/P Rebecca, the Principal still then refused to deal with them. 700 There was also evidence of a view that the Principal bullied and belittled staff, who persisted in their efforts to raise safety issues, at daily DAP meetings, or at weekly staff meetings. The Principal disagreed, as did A/P Amanda and A/P Jon. Given the evidence of staff concerns as to safety matters; the Principal's own evidence as to her attitude to them; the evidence of staff persistence in pursuing such matters; the evidence of various staff, including teacher Ron, TAS Mary, TAS Su and A/P Rebecca, that the Principal's treatment of staff who sought to pursue such concerns, was not appropriate, must be accepted. There is certainly no reason why the evidence of TAS Mary, TAS Su or teacher Ron, about the Principal's approach to them, should be disbelieved, confirmed as it was by the evidence of A/P Rebecca. 701 TAS Mary sought to raise the duress alarm failure direct with the Principal on 10 March, as did teacher Ron that day. Safety concerns were also the subject of a general staff discussion on 10 March during a meeting, ongoing when the Principal returned from the pursuit of the escapees that day. On her own evidence, the Principal required the discussion to cease. Even when safety was raised again on Friday at the staff meeting, after the school had been closed in the aftermath of the escape, in the context of a suggested DET consideration of what had happened during the lead up to the escape, including TD's behaviour, the Principal insisted that these matters were not to be discussed. Despite the evidence of the heightened tensions amongst detainees, in the aftermath of the escape, confirmed by the records kept in the Log Books in evidence, the failure of the duress alarm system was never investigated by the DET, or the DJJ. 702 The Principal's evidence was that she had taken the course of refusing to allow staff to discuss the circumstances of 10 March, that day and subsequently, to save the face of certain DET staff, who, on information then known to her, appeared to have left open a door, at recess, which permitted the escapees to gain access to the second quad, from which they escaped through a classroom. This provided no sensible explanation of the attitude adopted. Plainly, it was contrary to applicable DET policy. There was no explanation for the failure to apply those policies at Putland. Copies were provided to staff, as being binding on them. They ought to have been applied by the DET. 703 On the expert evidence, such an approach was inconsistent with proper management support of staff with serious safety concerns, adequate to ensure that they were not susceptible to psychological injury, when required to deal with detainees engaging in physical violence or threatening it, in their classrooms.

BH and 15 March 704 That situation next confronted TAS Mary on 15 March, when school next resumed. At the morning DAP meeting, the reports of serious problems at Cobham over the weekend, must have been passed on, in accordance with the normal practice. On Professor Tennant's evidence, recurring violent or threatening behaviour was more likely to be predictive of further violence than a history of such behaviour months or weeks ago. What was planned for that day, required teacher Ron and TAS Mary to take for a General Education class, the Impact class in which BH was enrolled. Teacher Ron's concern about BH's presence was raised before class with A/P Rebecca, but the class proceeded. The staff were instructed to apply the School Rules, in order to ensure safety. On Jane M's evidence, it was by then well known that those Rules had not been effective in ensuring BH's behaviour, in the past. Dissatisfaction with the Rules had triggered violent behaviour over the weekend. Teacher Ron had not taught this class before, although he and TAS Mary were aware of BH's reputation for violence. Despite their concerns, no other, additional steps were taken to ensure safety in class that day, despite the advice then given by DJJ, that all detainees, including BH required 'vvcs' - very, very close supervision. 705 On any view, the personal safety of TAS Mary, that of teacher Ron and other detainees in the class, for whom the staff had responsibility, was at risk that day. The risk materialised when BH began his rampage in the classroom. 706 When he was being restrained, outside the classroom, BH physically assaulted one DJJ officer. He had earlier thrown a chair at teacher Ron's head, only narrowly missing his head, before he was restrained by DJJ officers in the class, with some difficulty. BH was charged with an offence as a result of his assault of the DJJ officer. None was laid in relation to the assault of teacher Ron, even though it was the view of the Assistant Director of Cobham, that BH's conduct towards teacher Ron had been extremely serious. 707 It must be observed that the attitude of the two departments appeared quite different in a number of respects, including what detainee behaviour would be tolerated. BH had been earlier charged in relation to some damage which he caused to a television at Cobham. He was charged with assault of a DJJ officer, as the result of the events of 15 March. His damage to the classroom and its contents and his assault of teacher Ron, by way of contrast, led to no charges, indeed it was teacher Ron's evidence that the Principal dismissed the idea when he raised it with her. Nor was TD charged with his earlier assault on teacher Ron. 708 The two departments also differed markedly in their approach to self defence training for staff, required by the DJJ for staff at Cobham, but generally not provided by the DET to its staff at Putland, despite staff requests. They also had quite different approaches to the provision of information to staff about the history of detainee charges and their behaviour in custody. Such information was recorded and routinely provided to DJJ staff, but not made available to the DET staff in the same way. Indeed, to the contrary, the DET approach at Putland was that other than in relation to consideration of daily reports of behaviour at DAP meetings, such information was encouraged to be treated as irrelevant. In the result, staff had to rely on their memories of past detainee behaviour, when considering such daily reports. 709 BH was transferred to Kariong, after the events of 15 March. TAS Mary participated in and observed the entire episode involving BH, and TAS Su observed what occurred in the quad. While the Principal criticised TAS Mary, who did not respond to her direction to stop observing what was occurring with BH and to leave the classroom, it seemed, on the evidence of other witnesses, that what was occurring was quite transfixing. The expert evidence was that freezing was not an unusual response to such a situation. In any event, TAS Mary was still dealing with the other remaining detainee. She thought the Principal was directing her concerns to that other detainee. 710 The situation was being observed by other DET staff, including TAS Su, unsurprisingly, given how classrooms were configured around the quad, the noise and commotion which BH was making and the difficulties DJJ staff were having in controlling him. On the evidence, it seems to me that this situation can only have reinforced to DET staff who witnessed what occurred, including TAS Mary and TAS Su, the nature of the serious risks to which they were being subjected in their employment at Putland; concerns which the Principal had simply dismissed out of hand, when staff had repeatedly sought to raise their safety with her, as recently as the preceding Friday. That very morning, despite DJJ advice that all detainees required 'vvcs', classes went ahead on a new basis, without additional safety controls being put in place. 711 TAS Su's evidence was that she was very affected by what she observed. There is no reason to doubt that evidence, particularly having in mind the evidence of treating doctors and experts. TAS Mary took sick leave from 15 March and did not return to Putland. Given even the Principal's description of TAS Mary, her attitude and her approach to her work, that she was severely affected by what occurred that day, to the point of injury, cannot be doubted, especially given the medical evidence. 712 All of this resulted, as I have found, because the defendant did not take steps available to deal with the heightened risk which BH posed, even as his behaviour deteriorated to the point of extraordinary violence. That this was psychologically unsafe cannot be doubted.

715 I am satisfied on the evidence of both the events in question in the period of the charge and the expert evidence, to which I have referred, that this particular was established to the requisite degree. 716 Even on Professor's Tennant's approach, the conclusion that necessary management support was inadequate in this period to ensure that repeated exposure to behaviour which put staff at risk of psychological injury, did not materialise such injury, was unavoidable. He agreed in cross examination, that depending on the severity of the behaviour, belittling or bullying staff who sought to raise safety concerns in meetings, would make a workplace psychologically unsafe, particularly if that person was the sole person who was picked on in that way. The evidence here was that there was a particular group of employees, including TAS Mary and TAS Su, who had concerns about safety, which they sought to pursue with the Principal. They involved their union with their concern that the Principal was not adequately concerned with their safety. They themselves pursued safety issues, as did A/P Rebecca on their behalf. The Principal's response to what was being raised with her by TAS Mary and TAS Su was not adequate, so as to ensure safety. To the contrary, the way that they were treated exacerbated their situation. 717 For TAS Mary, the incidents on 10 and 15 March then arose. Given how TAS Mary was treated on 10 March and in subsequent days, when seeking to raise her safety concerns with the Principal, that the approach adopted was psychologically unsafe, was established. Dr Brown viewed the Principal's response as extraordinary. TAS Su had experienced similar treatment on earlier occasions and was present when TAS Mary was so treated. The events of 15 and 17 March, when TAS Mary and TAS Su each had to rely on a response to the duress alarm, occurred at a time where a serious failure of that system on 10 March, had not been investigated or addressed. Professor Tennant agreed that the system should have been tested and repaired in the shortest possible time. He said:

718 The Principal was made aware of the DET system failures on 10 March. The DJJ was not. There was simply no response to the problem; no attempt to establish what had occurred, or to ensure that the failure did not occur again. When made aware of the problems, both Mr Muir and Jane M, took the view that the failures were serious. Undoubtedly, they were. 719 In addition to the matters earlier mentioned, reference should also be made to the failure to have in place policies to guide DET staff, in the event of an escape. The defendant had no such policy, even though other documents identified that staff were at particular risk of aggression from detainees, wishing to escape. The evidence was that there had been no training or drills conducted in how DET staff were to respond to such a situation, explaining, no doubt, why the Principal involved herself in the pursuit of the detainees, rather than remaining at the School. Again, despite her own response, the Principal's general attitude was that dealing with the detainees at that point, was a matter for the DJJ alone, not DET staff. 720 It was certainly the attitude of the DJJ, that the Principal had no role to play in any pursuit. That was a matter for police. There was no suggestion that the Principal, or any of the A/Ps who she left behind, had any training in, or understanding of, what they should do, in the event of an escape. The Principal presumed that the DJJ would simply take control. 721 The Principal's departure effectively left a relatively inexperienced Acting A/P in charge of the School. There was evidence that other Putland staff were concerned, including TAS Mary and TAS Su, that the Principal had left the School. On the evidence, she certainly did not explain why, or even announce, that she was leaving. The description of the situation was that once it was appreciated what was happening, DJJ staff responded to control detainees in the quad, who had become restless, in order to remove them to their units. They were assisted by Putland staff, but the Principal simply left, taking no steps at all to satisfy herself as to the safety of her own staff. 722 Even the defendant put to A/P Amanda in cross examination, however, that in the event of a critical incident 'It is the principal's role to make sure the staff are safe and all accounted for'. A/P Amanda agreed. 723 In that context, the Principal's description of how she dealt with the staff meeting, which she found underway, on her return to school and her insistence that what had occurred that day, was not a matter for the School staff to consider at all, even in the context of ensuring safety, only lent force to the conclusions I have reached for the reasons already explained, that the particular was established. The Principal repeatedly refused to deal with what had occurred on 10 March with TD that day, or in the days subsequently. She failed to provide a serious incident report in relation to the matter, despite her evidence in the proceedings that she had told teacher Ron that day that the matter was serious and that he had been assaulted. She gave entirely wrong advice to Ms Koussa as to her knowledge of these events, which can only have been designed to give a false picture as to her failure to deal with a serious breach of Putland's safety system. 724 The approach adopted was entirely inconsistent with various of the defendant's paper systems, as I have explained, even those designed to preclude staff from sustaining a psychological injury. Further incidents then unfolded in close proximity to that which occurred on 10 March. Given their already heightened anxiety, on the expert evidence, it is apparent that both TAS Mary and TAS Su were unable to cope with the risk to which they were further exposed. Injury resulted. There can be no doubt that the particular was established to the requisite degree. b) Aspects of the defendant's psychologically unsafe place of work were any of the following:

i) Failure to provide social support on 10 March 2004 in the form of supportive management or leadership when the Principal left the unit to follow three escaping detainees and thereby left the employees of the unit without adequate support. 725 On the evidence, the Principal's pursuit of the detainees was inconsistent with policies which required such matters to be dealt with by DJJ staff and the police. Plainly given her evidence, the Principal sought to provide the DJJ with assistance, which she perceived she could provide. It was not sought by the DJJ, which disagreed with what she had done and took steps to ensure that she did not involve herself in such a way again. 726 When the Principal left, the school was left in charge of the A/Ps on duty. There was a relatively inexperienced A/P effectively left in charge that day. While not a desirable situation, that she and the other A/Ps remaining, were unable to provide support and leadership to staff, in the events that unfolded that day, was not established. The Principal's role was ordinarily undertaken by such A/Ps, whenever she was absent. Ordinarily A/Ps were not left to deal with serious situations such as this, but there was no evidence from which it could be concluded that those left in charge of the School that day, left other employees such as TAS Mary and TAS Su without adequate support. 727 That this situation might, nevertheless, have confirmed staff concerns about the Principal's attitude to their safety, is a different matter. Certainly the evidence of TAS Mary and TAS Su was that at the time, they could not understand why she left. They observed her doing so, with disbelief. That does not seem a surprising reaction, given the Principal's general approach, that safety was a matter for the DJJ, not the DET to ensure. Her approach on her return to School and the way in which she rebuffed attempts to raise safety issues that day and in the days following, is another matter, dealt with by other particulars. 728 I am not satisfied, however, that the Principal's departure, of itself, made Putland psychologically unsafe, was established, to the requisite degree.

729 This particular was established. TD's serious threats and assaults that day in class were established, as was the sounding of duress alarms, which were not responded to. All that I have earlier said about this situation is relevant to this particular. 730 The information provided by the Principal to Ms Koussa was that she was not aware, even by the time of that investigation, what had occurred in the class on 10 March, was plainly wrong, given her evidence in these proceedings. That information was always available to her, being contained in the reports provided immediately after the incident, by TAS Mary, teacher Ron and the A/P. She also spoke to each of them that day. 731 In her evidence in chief, the Principal said that on 10 March, she had a conversation with teacher Ron, after her return from the pursuit of the detainees, in which he told her of TD snatching a piece of paper from him, insulting him and pushing a table into his stomach. She advised him that this constituted assault, was a chargeable offence and should be dealt with in a level 2 misbehaviour report. It was, but no charges were laid and the matter was never dealt with, or even investigated by the defendant. 732 The Principal's opinion was consistent with that of Jane M, who also regarded the situation to be a serious one. 733 In the light of that evidence, the Principal's failure to act on the available reports; to prepare a serious incident report; to respond to the concerns TAS Mary sought to raise with her the same day, about the failure of the duress alarm system; the failure to ever investigate what occurred in class that day; and what the Principal later told Ms Koussa, when she professed to be unaware of the relevant events on 10 March, was difficult to understand. It certainly revealed a significant and inexplicable failure to deal with the serious situation known to the defendant to have occurred in the class on 10 March, or to provide adequate support to the affected staff. On the evidence, that included TAS Su. There had been concerns about safety at Putland and the Principal's attitude to such concerns for some time. The Principal required TAS Mary and TAS Su to return to class, with a known failure of the safety system unresolved. Given Professor Tennant and Dr Brown's evidence, there can be no doubt that this approach could not ensure safety. 734 The Principal was present in Court while much of the prosecution evidence was called, including that of A/P Rebecca. In cross examination, the Principal explained that by her comment to A/P Rebecca, when she sought to raise these safety issues with her that 'Heaven help us when something serious so happens', she was referring to the Yasmar incident, where a fatal stabbing had occurred at another juvenile detention centre school. The idea that this was the level of seriousness required, before staff safety concerns about serious incidents which occurred at Putland were addressed by the Principal, even when raised with her by an A/P, in accordance with the practical system which the defendant operated at Putland, which required staff to raise their concerns with their A/P, who would raise them with the Principal, also confirms the conclusion that this particular was established. iii) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary brought to the attention of the Principal, after the Principal returned from chasing the escaped detainees, that during the 10 March 2004 class room incident an urgent request for help went unanswered.

v) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary attempted to raise and discuss matters with the Principal at the next weekly staff meeting after the 10 March 2004 class room incident and escape incident. 738 This particular was also established, as I have explained to the requisite degree, even on the Principal's evidence. There can be no doubt that her attitude failed to ensure TAS Mary's safety, given the risk to which she had been exposed. The defendant's policies envisaged such support would be provided as a means of controlling this risk. It was not. vi) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when the Principal never sought the views of TAS Su about the bomb scare, class room fight and escape on or after 17 March 2004. 739 The evidence was that there was an evacuation of the School on 5 March, when a bomb scare occurred. This was outside the period of the charge, but relevant to TAS Su's response to the events in the period of the charge. There was a conflict in the evidence as to what staff were told about the need for the evacuation and when they were told to return to Putland. 740 That TAS Su was concerned by the fact that there had been a bomb scare, shortly before the escape on 10 March, cannot be doubted. TAS Su's evidence in relation to what occurred in relation to the bomb scare, departed, however, from that of other witnesses, including that of TAS Mary and various A/Ps. On all of the evidence, I am unable to conclude that the way in which this situation was dealt with by the Principal, can have been a matter which, on any view, was one likely to have given rise to the risk of psychological injury for TAS Su. She was certainly dissatisfied with the Principal's communication with staff in relation to that situation, but her view was not one which most other witnesses shared. 741 The same cannot be said in relation to TAS Su's reaction to the other events in which she was involved. After 10 March, she was present at meetings when TAS Mary and teacher Ron unsuccessfully tried to pursue their concerns about the failure of the duress alarm system, in the context of TD's behaviour on 10 March. She had herself been involved in what had there occurred. Unsurprisingly, she was concerned about the Principal's response, which was consistent with how concerns she had herself raised about safety issues, had earlier been dealt with by the Principal. 742 While the defendant submitted that these concerns were merely an indication of 'vocational dissatisfaction', it is not possible so to dismiss TAS Su's evidence, that she had also sought to raise her safety concerns, only to have them dismissed out of hand. The Principal agreed, for example, that when TAS Su sought to raise concerns about the composition of detainees in a class, for example, her general response was that evidence had to be provided, going to points, misbehaviour reports and so on; so that if a problem was identified, then steps could later be taken to deal with it. A/P Rebecca then endeavoured to pursue that course on TAS Su's behalf, but could get no resolution in her discussions with the Principal. 743 On the evidence, the difficulty plainly was for a TAS like TAS Su, who raised her concerns at the daily DAP meeting, the time at which decisions about access to class had to be made on the information then to hand, that the approach of deflecting consideration of safety concerns raised by such staff to a later time, with written evidence of the basis for such a concern being required to be provided, was that detainees were given access to class in the meantime, on the basis that existing controls were adequate to ensure staff safety. That did not always prove to be the case, as the evidence in these proceedings so amply revealed - those controls were not able to identify all of those detainees prepared to engage in behaviour in class which could put staff safety at risk, so that they could be excluded. That was the situation with BH on 15 March, whose behaviour was so out of control that he was able to assault both teacher Ron and DJJ staff, called in to remove him. TAS Su, along with other DET staff, observing the difficulties created by BH resisting control in the quad, was on any view, confronted with a very serious situation resulting in BH's transfer from Cobham. I am unable to agree with Professor Tennant's perception that this was but a trivial stressor, even for TAS Su, given her already existing serious concerns about her safety. This was plainly one of a series of incidents, in close proximity, albeit of a lower level of impact for her than TAS Mary, but which contributed to her heightened state of anxiety which finally resulted in an injury, after the incident on 17 March. 744 On the Principal's own evidence, TAS Su was dedicated to her work. She plainly was not a malingerer, nor taking sick leave at this time, even despite her growing fears about her safety and increasing inability to cope with the risks to which she felt that she was being exposed by the defendant at Putland. 745 Along with other staff, TAS Su observed and was understandably concerned by BH's behaviour on 15 March, again bringing home to her the level of risk to which she was being exposed in her work at Putland, at a time when the Principal had repeatedly refused to investigate or even discuss the failure of the system on 10 March. TAS Su had been involved in an incident in class in 2003, the first time that she had observed a violent altercation in a classroom, which she described as a 'blood bath'. The next occasion was 15 March 2004, when she directly observed such a situation, but like other staff, she was present at DAP meetings, when detainee behavioural problems were discussed in the meantime. She was also involved in the other safety issues which had arisen during the building programme. While not directly involved in the way TAS Mary was that day, that TAS Su was adversely affected by what occurred on 15 March, cannot be doubted. On the evidence this was an extreme situation even by Putland standards and can only have reinforced to TAS Su, the serious risks to which she was being exposed in her daily work at Putland. These events led to TAS Mary's injuries, as well as those suffered by teacher Ron. Their seriousness cannot be doubted. 746 On 17 March, again, violence erupted in the classroom in which TAS Su was teaching. A/P Rebecca's evidence was that this was not a major incident by Putland standards. Until that day, on her evidence, TAS Su had not herself needed to use a duress alarm to call for assistance in class, since the preceding year, the teachers had always radioed for assistance. Her reaction that day, occurred shortly after 10 March, when there had been a failure of the duress alarm system which the Principal had repeatedly refused to discuss or investigate. Then TAS Su had cause herself to call for such assistance. Her reaction and consequential sick leave, no doubt, formed part of what led the Principal to the view, which she explained to Ms Koussa that she had formed of TAS Su and her inability to cope any longer at Putland. Her view was that TAS Su had an 'underlying problem' in 'working with our sort of kids'. She had not understood the risks of working at Putland on an emotional level, until directly involved in an incident. She had indicated to students that she did not trust them and that she had raised concerns about feeling unsafe, as 'a number of people [staff] do'. She had earlier spoken out at meetings where safety procedures were raised. The Principal was aware that there had earlier been odd occasions when she had been teary and felt she was not coping, before she left work. 747 Given the DET's policies in relation to detecting and preventing the risk of psychological injury materialising, it appears that the Principal identified that TAS Su was at risk of psychological injury, but failed to act. Plainly she ought to have done so. The view that TAS Su was not coping at work, led to no action of any kind, to deal with that situation, or to prevent any potential injury from manifesting. 748 While TAS Su had a good relationship with her supervisor A/P Rebecca, she did not seek out her assistance in March 2004 when she found herself increasingly distressed, to the point of vomiting on her way to work. Nevertheless, A/P Rebecca had also earlier observed that TAS Su was not herself and had become withdrawn. Like the Principal, that observation led to no action being taken, despite the applicable policies, which ought to have led to some active assistance being provided, for example, by the School counsellor to whom TAS Su could have been referred, or the EAP. The policies were simply not in operation at Putland. All of the defendant's systems failed to produce any steps to assist TAS Su, or to prevent her injury. 749 I am unable to accept the defendant's argument that A/P Rebecca's later report to Ms Koussa, as to what she had observed in relation to TAS Su, would be discounted, given that it was given some four weeks after TAS Su's injury. A/P Rebecca's report was consistent with her evidence in these proceedings and with the Principal's report to Ms Koussa, which was to similar effect. They both detected that something was amiss with TAS Su, but did nothing to deal with that situation. 750 The steps finally taken after the incident on 17 March, did lead to TAS Su receiving medical attention. By that stage, the injury had been sustained. Had proactive management and social support been provided earlier, the injury may have been avoided. That was the crux of Ms Knox Haly's evidence. The absence of such support increased TAS Su's vulnerability to the risk of injury. 751 The defendant's submission that the evidence was that TAS Su had formed the view, over a period of a week, that she would not be given a receptive hearing, by the Principal, cannot be accepted. That was a view which TAS Su had held for some time. It was the events which unfolded themselves over this period, given her existing concerns, and the defendant's failure to take available steps to deal with them, so far as TAS Su was concerned, which led to the injury materialising as it did. The submission that any failure on the Principal's part was immaterial, because the necessary support was provided by other supervisors, cannot be accepted on the evidence. Such support was simply not provided, despite the good rapport which existed between TAS Su and other supervisors. Even though A/P Rebecca detected that something was wrong, nothing was done to investigate or deal with that recognised situation. The Principal's approach, when she was directly involved and in a position to deal the situation where she plainly recognised that TAS Su was not coping, also led to no assistance being given to her. 752 The defendant's submission that Ms Knox Haly's conclusion that TAS Mary and TAS Su worked in an environment with complex, often dangerous young males, a situation where staff were frequently exposed to critical incidents and there was a very real danger of assault 'flies in the face of the actual evidence relating to the experiences of' TAS Su', also cannot be accepted. That is precisely what the evidence disclosed. Even when not directly exposed to such situations herself, TAS Su, along with other DET staff, including TAS Mary, attended morning briefings where staff were routinely provided with such information, which they then had to take into account, in their ongoing dealings with detainees who they were constantly warned about, as posing a serious risk to their safety, as they plainly did. TAS Su was routinely informed about incidents at Putland and Cobham; she directly observed what occurred with BH on 15 March and was the one who heard the duress alarm on 10 March, which was not answered. That problem was never dealt with. Again, it must follow undoubtedly, that this particular was established.

755 This evidence corroborated that Putland staff did have a basis for their ongoing concern about the existing Committee. 756 There was no evidence that the existing Committee directed its attention in any meaningful or effective way to preventing psychological injuries, at Putland, despite the obvious risk to which employees were there exposed. Serious incidents which occurred at Putland were never referred to the Committee for its consideration or attention. This altered after March 2004. 757 The evidence was that the various DET policies directed to detecting and preventing those at risk of psychological injury from suffering such injuries, were not operating effectively at Putland. The Principal and supervisory staff had not been trained in how to apply such policies. Had the Safety Committee turned its attention to the risks which detainees posed for staff safety, the problems with the failure to operate such paper safety policies might have been detected, necessary training given and the policies implemented. The evidence showed that the necessary effort to ensure the safety of Putland staff, from the risks detainees posed, was not being made by the Committee which was operating. 758 The defendant argued that this allegation concerned an issue legitimately raising an industrial dispute, but could not be causatively connected with the risk of injury. This was because the obligation imposed by s 17 of the OHS Act to have a safety committee was satisfied. There was no obligation to have more than one committee, even if a majority of employees had requested one. The DET policy was for only one committee at each site, to avoid duplication of effort and inconsistency in decisions. Those arguments, undoubtedly, have some foundation. 759 On the evidence, I am unable to conclude, as the prosecutor argued, that the necessary causal connection between what this particular actually alleges and the risk here in question materialising, was established. Not even Ms Knox Haly's evidence provided support for that conclusion. While it was ineffective, so far as detainee risk assessment was concerned, there was a committee established and operating. It was seeking to address the question of individual detainee risk assessment. These endeavours were not effective in ensuring safety. It was the failure of the existing Committee's efforts in that respect, not the absence of another committee entirely, which contributed to the safety risks materialising. It follows that it may not be concluded that this particular was established.

760 For reasons which I have explained, there can be no doubt that TAS Mary and TAS Su each suffered a psychological injury, as the result of their experiences at work at the relevant time. Their claims were investigated and liability for their injuries was accepted by the defendant, for workers compensation purposes, indeed, it never disputed its liability, given what Ms Koussa's investigation revealed. Even though Ms Koussa concluded that TAS Su's response to the 17 March incident was disproportionate to the incident, in her view TAS Su might have been sensitised to potential distress on account of prior incidents and through her personal concerns with safety. The defendant's submission that there had not been such other prior incidents, cannot be accepted, on the evidence. 761 TAS Mary had been involved in a number of incidents in the two and a half years that A/P Rebecca had worked at the school. A/P Rebecca told Ms Koussa that these included a student assault in a class TAS Mary was working in, in 2003; one where she had sought help from the Principal with a detainee who had thrown chairs at a window in class, but the Principal told her that she was too busy to assist; and the incident where she had called for assistance on 10 March, when accosted by TD, when none came. A/P Rebecca reported that the escape that day had not been acknowledged as serious by the Principal, who stated 'heaven help us when something serious happens'. As to the 10 and 15 March incidents in which TAS Mary had been involved, it was A/P Rebecca's view that they were 'extreme'. 762 Like TAS Mary, TAS Su had also been involved in other incidents before 17 March, in addition to observing what occurred with BH in the quad on 15 March. She had been involved in what occurred on 10 March with TD when the defendant's safety system failed to ensure that assistance was given to TAS Mary and teacher Ron. In 2003, there had been a serious assault of one detainee by another, in a class in which TAS Su was teaching, and earlier in March there had been a bomb scare. 763 As I noted earlier, the OHS Act does not envisage that an offence is committed only when an employer is aware that a particular employee is no longer coping with exposure to repeated acts of violence at work and thus has become at particular risk of psychological injury. There was, for example, no onus on TAS Su to bring her situation to the attention of the defendant. Indeed, the defendant's own policies recognised that staff themselves might not be conscious that they were being injured. 764 On TAS Su's evidence, for her that realisation did not come until some time after 17 March, when she came to recognise that vomiting on the way to work and feeling scared when she arrived at work, concerned as to what detainees she would have to work with that day, and what incidents would occur, were symptoms of an illness which she was developing. She described these feelings having arisen during the building programme at Putland and while she had raised her safety concerns about the size of the classes then being taught and other matters, she did not complain to her A/P that she was becoming ill, because she did not know this herself. This evidence cannot be discounted, as the defendant submitted, merely as evidence of stress felt by TAS Su, in relation to an industrial issue over class size. 765 It was also argued for the defendant that the evidence showed that TAS Su did not feel inhibited about raising issues with the Principal and that her perception that she did not obtain the response which she sought, was but a clear example of vocational discontent, as opposed to occupational stress. On the evidence, I am unable to accept that submission. The one employee can obviously have both responses, to a situation where their safety is being put at risk. As a matter of logic, if nothing more, the two responses - vocational discontent and injury are not mutually exclusive. 766 That it might be difficult for an employer to predict at what point a particular employee will be injured and by what particular, unknown event, is not to the point. On the evidence, this defendant was unable to prevent its employees repeatedly being exposed to violence and threats of violence at Putland. Such exposure was known to give rise to a risk that its employees could suffer a psychological injury, as a result. The OHS Act thus required that the defendant take the steps necessary and available to ensure that no such injury occurred. If the risk could not be excluded; it had to be controlled, at least. Under the applicable policies, repeated concerns being raised by staff as to their safety, including by TAS Su and TAS Mary, in this environment, ought to have been recognised and dealt with at Putland as clear warning signs of the risk of injury materialising. They were not. 767 It follows that it must be concluded that this particular was established. That was the view of Ms Koussa, Ms Knox Haly and various medical experts. Experts called by the defendant disagreed with Ms Knox Haly's conclusions, in the reports which they provided. In cross examination, however, it became apparent that the instructions they had been given by the defendant as to the facts, departed in significant respects from the evidence in these proceedings, as to what had, in fact, occurred. I have already dealt with this. 768 In the result, in cross examination it was conceded, for example, by Professor Tennant, that the Principal's approach to the safety issues brought to her attention by A/Ps such as A/P Rebecca, was unhelpful. That no action was taken to deal with these issues was also unsatisfactory, as was the Principal's refusal to give TAS Mary any answer to the serious safety concerns which she sought to raise with her. While Professor Tennant insisted that this was not unsafe, merely poor communication, that was not Dr Brown's view and is a view which I cannot accept on the evidence. Professor Tennant accepted that it was unsafe not to implement safety procedures and to fix the duress alarm system. I am satisfied that the failure to implement available controls, which would have prevented psychological injury from materialising, despite the repeated acts of violence and threats of violence to which staff were exposed to, can leave open no conclusion other than that the psychological injuries sustained by TAS Mary and TAS Su resulted from what they were exposed to at this workplace. There can be no doubt that those injuries materialised as the direct consequences of the defendant's acts and omissions. The proper construction of s 28(a) of the OHS Act, the defence on which the defendant relied in each case, particularly in relation to the concept of reasonable foreseeability. 769 The s 28(a) defence is concerned with what is reasonably practicable. It has been accepted that if the happening of an event is not reasonably foreseeable, it is not 'reasonably practicable', for the employer to make provision against it. In considering such issues, however, care must be taken not to substitute reasonable hindsight, for reasonable foresight. (See WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381.) 770 The standard of foreseeability is objective, but it is not necessary to show that a reasonable man placed in the defendant's position would have foreseen as a possibility, the particular chain of cause and effect involved. (See Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 364.) Nor is it a question of whether an employer was aware of a particular risk, but rather whether it should have been. (See Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at [76].) 771 In the case of a known risk, an employer must demonstrate that the balance of the nature, likelihood and gravity of the risk in question outweighed the costs, difficulty or trouble of the measures necessary to avert the risk. In the case of a risk giving rise to a potential for serious injury, the costs, difficulty or trouble of the necessary measures must be shown to significantly outweigh the risks. (See WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447 at [38].) 772 In some cases it has been accepted that it was not practicable for an employer to guard against an appropriately trained and instructed employee departing from a known safety procedure. (See Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [67].) The unforeseen behaviour of a disobedient employee may also lead to the happening of an event, which could not be reasonably foreseen and which was not reasonably practicable to guard against. (See Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 at [121].) The defendant did not, however, advance arguments of this kind in its case. How does the statutory defence operate, especially in the context of a charge relating to a psychological injury? 773 The defendant here argued that in order to understand the scope of the concept of 'reasonable foreseeability', arising in the context of the s 28(a) defence, that it was not reasonably practicable to comply with the obligation imposed by s 8(1) to ensure safety in a case of psychological injury, 'one perforce is required to consider what the common law has said that expression means, particularly in the light of common law claims arising out of negligent conduct which caused a known psychiatric illness or injury.' 774 To advance this argument it was submitted that it was not possible that the reach of the occupational health and safety legislation in New South Wales is such that every workplace where there is a person who might be at risk, or is at risk, of suffering occupational stress, meant that the OHS Act was being breached by the employer. The risk of psychiatric injury had to be put in its proper place, in order to strike a balance between the prosecutor, defendants and the public interest. It followed that a 'control mechanism' in relation to 'reasonable foreseeability' in the case of psychiatric injuries, as applied in common law cases, must be accepted by the Court, in determining whether a s 28(1) defence had been made out in the circumstances in question. 775 To make good that submission the defendant undertook an extensive review of the authorities dealing with reasonable foreseeability of psychiatric injury in common law cases, submitting that the principles there developed, should be applied in this statutory context. 776 What those 'principles' were said to be, was not entirely clear, but extensive reference was made to the authorities dealing with the idea of 'normal fortitude'. For example, in Tame v New South Wales (2002) 211 CLR 317, the idea of "normal fortitude", was described by Gummow and Kirby JJ as 'not a free-standing criterion of liability, but a postulate which assists in the assessment, at the stage of breach, of the reasonable foreseeability of the risk of psychiatric harm' (at [189]). Their Honours Gummow and Kirby JJ went on to say at [201]:

116 There were times when the respondent kept up a reasonable façade at work as she struggled to cope. It is also true that Mr Singh's capacity to detect stressors likely to result in psychiatric injury is not to be measured as if he were a medical specialist. But Singh was a manager who knew from June 1995 onwards that the respondent needed and was entitled to expect his assistance and cooperation. His evidence to the effect that he did not observe the respondent's deterioration in the latter months of 1995 was rejected. Instead, there were the positive findings summarised above. There was plenty of evidence that the respondent was not giving the appearance of coping with the situation at the critical time (see respondent's submissions at 25.2.2 782 Reference was also made to New South Wales v Fahy (2007) 232 CLR 486, where it was observed by Gummow and Hayne JJ for example, at [60]: "There can be no doubt that performing the duties of a police officer can often be very psychologically stressful. That is the inevitable consequence of the kinds of work police officers are required to perform. That a police officer may suffer psychiatric injury as a result of performing that work is, therefore, readily foreseeable. The risk of such injury is not far-fetched or fanciful; the risk of injury may not even be remote (if, 'remote' is understood as meaning extremely unlikely to occur). 783 Likewise, in this case, there can be no question that performing the duties of a TAS at Putland can be psychologically stressful. The defendant's systems and policies put this beyond doubt. That a TAS might suffer psychological injury as the result of their work was foreseen. It was not far fetched, fanciful, or remote. 784 The various opinions of those who gave evidence as to the foreseeability of TAS Mary and TAS Su suffering a psychological injury as the result of what they were exposed to at work in the period of the charges, must be assessed, of course, in the light of what the evidence as to the events in question has revealed. As the Chief Justice observed in Fahy at [5]:

In Barber v Somerset County Council [[2004] UKHL 13; [2004] 1 WLR 1089; [2004] 2 All ER 385. 4], the House of Lords dealt with the case of a schoolteacher who suffered psychiatric injury caused by work-related stress. Applying as a standard of negligence "the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know" [[2004] UKHL 13; [2004] 1 WLR 1089 at 1110 [65]; [2004] UKHL 13; [2004] 2 All ER 385 at 406, applying Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783.], the House of Lords disagreed with the Court of Appeal's decision that negligence had not been shown. However, Hale LJ in the Court of Appeal had formulated some practical propositions applicable to cases where complaint is made of psychiatric illness brought about by stress at work, and these were accepted in the House of Lords [[2004] UKHL 13; [2004] 1 WLR 1089 at 1092-1093 [7], [10], 1109 [63]; [2004] UKHL 13; [2004] 2 All ER 385 at 389-390, 405.]. On the question whether psychiatric harm to the particular employee was reasonably foreseeable, they included the proposition that "there are no occupations which should be regarded as intrinsically dangerous to mental health"[[2004] UKHL 13; [2004] 1 WLR 1089 at 1092 [7]; [2004] UKHL 13; [2004] 2 All ER 385 at 389.]. Another way of expressing a similar idea may be to say that the factors that may cause stress, and the circumstances in which an individual might suffer stress-related injury, are so various that to single out any occupation and treat it as intrinsically dangerous in this respect is unwarranted. There are circumstances, for example, in which caring for children might be at least as stressful as law enforcement. 785 It must also be remembered that these proceedings are not concerned with common law duties or obligations, but with a statute which imposes an absolute duty on the defendant to ensure the health, safety and welfare of its employees at work at Putland, subject to the defences provided by s 28(a):

786 It is clear on its face that s 28(a) itself draws no distinction between risks of physical, as opposed to psychological injury. A particular risk, may give rise to both types of injury, if the risk manifests. The s 28 defences are, however, undoubtedly an important aspect of this statutory scheme, introducing as they do, the concept of reasonable practicability and thereby, the question of reasonable foreseeability. In the particular circumstances of the offences here in question then, can it be concluded that it was not reasonably practicable for the defendant to have met its statutory obligation, in the circumstances in which TAS Mary and TAS Su were put at risk in March 2004? 787 Logically, it must be accepted, it seems to me, that there are situations where it may be less practicable for an employer to preclude a psychological injury when a risk manifests, as opposed to a physical injury, because the happening of the latter can more readily be foreseen, than the former. That was certainly the thrust of much of the expert evidence. The question which must be answered, however, whenever a s 28(a) defence is raised, is not whether a particular risk raised by a particular charge was actually foreseen, but whether it was reasonably foreseeable. 788 In this case, it seems to me, it may not be overlooked that there is no question that it was known to the defendant that its employees at Putland, including TAS Mary and TAS Su, were at risk of both physical and psychological injury, from exposure to the behaviour of the detainees with whom they worked in class. 789 That risk was known to exist because the detainees repeatedly engaged in acts of violence, threats of violence and other threatening behaviour towards other detainees, as well as to DJJ and DET staff. It was also known to the defendant that repeated exposure to such incidents, increased the risk of psychological injury being sustained and that with such repeated exposure, even a relatively minor incident, could be the 'straw which breaks the camel's back', resulting in a psychological injury being sustained. 790 The risk of psychological injury which flowed from exposure to such behaviour was described in various of the defendant's documents, which had been designed to ensure that the risk, which could not entirely be eliminated at Putland, was controlled, as s 8 of the OHS Act required of the defendant. 791 It was also known to the defendant that both TAS Mary and TAS Su had been exposed to such incidents, some of them more serious than others, over the course of their employment, prior to March 2004. It follows that there can be no question that it was reasonably foreseeable that they might suffer a psychological injury, if further exposed to such detainee behaviour. 792 When detainees would engage in such behaviour was unpredictable and could not be entirely excluded from manifesting, by any of the mechanisms or controls operated by the defendant. Given its other statutory obligations, the defendant could not entirely exclude detainees from class. The defendant's written policies and practical systems were therefore directed to controlling that general risk, whenever it manifested, given its assessment that every one of the detainees at Putland always posed a high risk to the safety of its staff, including those involved in the incidents which occurred on 10, 15 and 17 March. 793 The defendant's approach was, however, that it had established a defence in each case, because it had demonstrated that it was not reasonably foreseeable that TAS Mary and TAS Su would be injured, as they were. Neither of them had put the defendant on notice that they were no longer coping at work. It also relied on the view of Professor Tennant, for example, that it was not foreseeable that the relatively trivial events in which they were involved in March 2004, would result in the psychological injuries which they sustained. 794 There is real difficulty with the way in which the defendant advanced these arguments, given that the question of foreseeability is one of fact, which must be answered in the way discussed by McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [87]:

795 The onus fell on the defendant to make out the defences relied on, to the civil standard. Contrary to the defendant's submissions, there can be no question that each of these offences was concerned with known risks. 796 It was argued, nevertheless, that it was not possible that it was intended that the breach of the OHS Act was such that every workplace where there is a person who might be at risk, or is at risk, of suffering occupational stress, was one where an offence under the OHS Act had been committed. I accept that submission. However, the charges here before the Court are not concerned with the question of whether or not occupational stress was suffered at this workplace. The charges were each framed in different terms. 797 The defendant's policies and the evidence of its employees and those of the DJJ established that it had, in fact, foreseen that those it employed at Putland were at risk of psychological injury, because they were repeatedly exposed at work to violence and the threat of violence from detainees. The defendant had sought to implement practices designed to protect its employees from such risks materialising. It had also designed paper policies to protect its employees from such risks, which it could not entirely exclude, given the access to Putland which it was obliged to give detainees. 798 It was because repeated exposure to serious incidents happened at Putland, that other available controls envisaged by the defendant under its various paper systems, were important, they being designed to control the risk which it could not entirely exclude. The evidence showed that these paper systems were not put into operation. 799 It follows that the submission that it was not reasonably foreseeable that TAS Mary and TAS Su would suffer a psychological injury, if exposed at work to violence and the threat of violence, as they were, in March 2004, cannot be accepted. The evidence simply does not leave that conclusion available, even though the defendant could not foresee the particular way in which detainees would misbehave in the period of the charges. 800 The defendant also argued that the prosecution had to establish that a person of normal fortitude would suffer a psychological injury from exposure to the particular events which had caused TAS Mary and TAS Su, to be injured. 801 That submission has to be approached with some caution, it seems to me. On the evidence, unlike other employers, the defendant conducted no psychological screening to identify whether any of its employees were particularly vulnerable to the risk of injury from their repeated exposure to violent and threatening behaviour from detainees. Its policies and systems were thus designed to protect all of its employees, including TAS Mary and TAS Su, from sustaining a psychological injury, no matter what their particular vulnerability to such injury was, given that none of its practical systems were able to ensure that they were not repeatedly exposed to such behaviour. 802 Despite this, the paper systems designed to detect staff who were not coping, or were otherwise vulnerable to psychological injury and to protect them from such injury manifesting, were simply not in operation at Putland. It follows that any consideration of what persons of 'normal fortitude' might be able to tolerate, must have regard to this state of affairs.

Was the defence established in the case of the 10 March charge? 803 That TAS Mary might be subjected to detainee behaviour which could cause her either physical or psychological injury in the course of her work at Putland, was thus not only reasonably foreseeable, it was actually foreseen in the defendant's written policies. That risk was recognised to exist for all of its employees at Putland. That the risk existed so far as TD was concerned, was also known, given that he was assessed by the defendant as giving rise to a high risk to staff safety and he had before 10 March, engaged in violent and threatening behaviour at Putland. 804 It was also known to the defendant that before March 2004, TAS Mary had been involved in other incidents with detainees at Putland, during which she had already been exposed to such risks. TAS Mary had suffered a slight physical injury, as a result, on one such occasion. In 2003, she had sought medical attention after one such serious incident, because she experienced difficulty in sleeping afterwards, although she did not make the defendant aware of this. Had the defendant's paper systems been in operation, the defendant ought to have been aware of this. It was not. Nevertheless, that it was actually known that TAS Mary was at risk of psychological injury in March 2004 cannot be doubted on the evidence. It was also known to the defendant that repeated exposure to such behaviour could result in an injury being sustained by further exposure, even from a relatively minor incident. 805 This charge is concerned with the further manifestation of that general risk on 10 March 2004, when TAS Mary was again exposed to the risk inherent in the behaviour TD engaged in that day, when the defendant's systems failed to prevent or control that risk, as they were designed to do. 806 I have found that there was no doubt that TAS Mary suffered a psychological injury as the result of the manifestation of the risk inherent in TD's behaviour on 10 March. TAS Mary's state after exposure to TD's behaviour on 10 March, pointed to an injury having been sustained that day. That she did not seek medical treatment until 15 March, when she was again subjected to such behaviour by BH, does not detract from that conclusion. 807 In so far as 'normal fortitude' is a matter which must be considered, an onus must fall on the defendant. It must establish, to the civil standard, that the detainee behaviour to which TAS Mary was exposed on 10 March, was behaviour which would not have given rise to any injury, in a person of normal fortitude. I am satisfied that the defendant did not establish this on the evidence, which it sought to meet through the expert evidence which it called. 808 The evidence showed that it was known to the defendant that employees who were repeatedly subjected to detainees engaging in violent and threatening behaviour, might sustain a psychological injury, when a particular incident, which of itself might not cause such an injury, became the 'straw that broke the camel's back', given earlier exposure to the risk. Its expert evidence confirmed this. The defendant could not entirely preclude that risk, given that it arose from the detainees attending Putland. Therefore its systems were designed to control the risk, however it manifested. On 10 March, those systems failed. 809 There can be no doubt on the evidence in this case, that any consideration of what a person of normal fortitude might tolerate at Putland, when working with detainees who attended the classes which the defendant conducts there, must be approached on the basis that the events of 10 March would not have been their only exposure to such behaviour. That was certainly TAS Mary's situation, one well known to the defendant and which its policies were designed to deal with. The evidence was that this problem of staff exposure to violence and threats of violence and other anti-social behaviour, despite the controls in place, was a frequent one at Putland. 810 I am satisfied that there was no evidence from which it could properly be concluded that a person of normal fortitude, having had experiences at Putland such as those of TAS Mary, who was then exposed to the events of 10 March involving TD, would not have been at risk of suffering an injury, as she suffered. 811 The incident was not by any means a trivial one, involving as it did entirely unexplained and serious failures of the safety system which necessitated TAS Mary and teacher Ron dealing alone with TD, a high risk detainee, who was threatening teacher Ron. TAS Mary interposed herself and dealt with him. This had to be done without the assistance which they should have received from DJJ staff, to ensure that they were kept safe. On any view, TD should not have been able to return to class unaccompanied once he had been removed from class. He should have remained under DJJ control, unless returned to class by an A/P. Having not been so controlled, DJJ assistance should have been provided when called for. It was not. The defendant failed to investigate what occurred and in these proceedings offered no explanation for the failure of its systems. 812 On that evidence the conclusions which the defendant urged are not available. 813 In coming to these conclusions, it also cannot be overlooked that on the last occasion TD returned to class, SS, another high risk detainee, was also standing at the doorway, preventing the staff's exit from the class. This should not have been possible at recess, when detainees were supposed to be supervised, so that staff could safely move from class to the admin area. 814 That a person of normal fortitude might be able to tolerate repeated exposure to violence and threatening behaviour from detainees, given the assistance which DJJ officers provided to Putland staff, was not established. To the contrary, the defendant's policies recognised that it could result in injury. That a person of normal fortitude might succumb to psychological injury, when called upon to deal with such repeated behaviour, unassisted, even when assistance was called for under the duress alarm system, is another matter entirely. There is no basis upon which it could be concluded that a person of normal fortitude would not have been at risk of psychological injury, in that situation. 815 The evidence from which it might be concluded that TAS Mary was, in any event, herself a person of normal fortitude, may also not be overlooked. When injured, she had worked at Putland without difficulty, for over 12 years. She was described in exemplary terms, by both the Principal and her supervising A/P. She had in the past been involved in serious incidents with which she had dealt without injury, apart from one incident where she required medical attention, when she had problems sleeping, but from which she recovered. On this occasion, another employee, teacher Ron, exposed to the same events, also suffered an injury. The likelihood that the two members of staff assigned by the defendant to work together in class on 10 March with TD, when the defendant's safety systems failed, were both not persons of normal fortitude, seems so unlikely as to make the conclusion which the defendant asks the Court to draw, a most unlikely one. 816 Finally, the expert evidence led by the defendant, which sought to demonstrate that normal fortitude would have precluded any injury resulting from these events, was premised on a factual basis provided by the defendant, which departed in various ways from the evidence as to what had, in fact, occurred on 10 March, as I have explained. This meant that in cross examination, when asked about the events as they have been found to have occurred, the experts made concessions which preclude a conclusion that it had been demonstrated that a person of normal fortitude, exposed to TD's behaviour on 10 March, would not have suffered any injury. 817 The prosecution did not have to show that the particular chain of events which gave rise to the risk of injury manifesting on 10 March for TAS Mary had been foreseen (see Comalco Aluminium Ltd.) Nor was it a question of the defendant showing that it had not foreseen the particular chain of events which occurred on 10 March. Even at common law, as the defendant itself submitted, the High Court held in Chapman v Hearse (1961) 106 CLR 112, as to the concept of reasonable foreseeability, at 120 - 121, that:

818 It is in this context that another of the defendant's arguments that it was not reasonably practicable for it to have complied with its s 8 obligation, because TAS Mary did not put it on notice that she was not coping at work, must again be considered. That approach to the s 28(a) defence is not available. The obligation falls on the defendant to ensure safety in a proactive way. In the case of risk which can result in psychological injury, the obligation does not only arise when an employee puts an employer on notice that they are not coping. The question of foreseeability also does not depend on such notice being given. 819 On the evidence, the defendant was aware that its employees may not themselves be aware that they are sustaining a psychological injury. The employer's obligation is to do what is reasonably practicable for employees such as TAS Mary, by dealing with what is reasonably foreseeable as likely to give risk to a psychological injury, if not controlled. That is what the defendant here failed to do on 10 March. 820 In any event, as I have found, given the Principal's report to Ms Koussa, the defendant was on notice that TAS Mary was not coping at work. The problem was that the Principal failed to deal with what she had detected. 821 In this context, again, it is pertinent to refer to the defendant's failure to ensure that various of its paper policies, including its Occupational Stress Hazard Identification at Risk Management System, were operating at Putland. Neither the Principal nor other executive staff had been trained in what this policy envisaged would be done at Putland, to detect stressors and prevent psychological injury from manifesting. Nor had employees such as TAS Mary been trained in how herself to detect that she might be failing to cope, so that she was at increasing risk of psychological injury. 822 This omission put beyond doubt that the defendant had no basis upon which this defence could be established. There can be no question that it was practicable to have this and other relevant paper policies in operation. The same must be said about the defendant's Serious Incident policy. It obliged the defendant to have a Serious Incident Committee, which did not exist at Putland. The Principal failed to deal with the TD incident as this policy required, by making a serious incident report. Had the policy been in operation, what occurred on 10 March, would undoubtedly have been dealt with as TAS Mary repeatedly and unsuccessfully attempted to raise with the Principal. 823 It is strictly unnecessary to deal with this final aspect of the defence, given the other conclusions which I have reached, but for completeness, I observe that I am unable to conclude that the defendant demonstrated that the balance required by s 28(a) between the nature, likelihood and gravity of the risk here in question, outweighed the costs, difficulty or trouble of the measures necessary to avert the risk here in question. Perhaps because of the defendant's failure to ever investigate what had occurred on 10 March, the defendant did not really address questions such as these in its submissions. On the evidence, there was no explanation advanced for that failure of the defendant's systems and the failure to have relevant paper systems directed to preventing psychological injury, operating. Thus no basis upon which it could be concluded that the cost, difficulty or trouble of the measures necessary to avert the risk which manifested on 10 March, outweighed the nature, likelihood and gravity of that risk, was established in the defence case. Was the defence established in the case of the 15 March charge? 824 For similar reasons, I have concluded that the defendant did not make out a defence in relation to this charge. What occurred on 10 March and the concerns pursued by TAS Mary in relation to the failure of the safety system after that day must, on any view, have put the defendant on notice of the risk to which TAS Mary had been exposed; that she had been injured and that she was vulnerable to further injury. Yet no steps were taken to deal with that situation. That available steps were not taken cannot be doubted on the evidence, given the known risk which existed. 825 That the risk existed so far as BH was concerned, was also known. He too was assessed by the defendant as giving rise to a high risk to staff safety. Before 15 March, he had engaged in violent and threatening behaviour at Putland, indeed, he had done so over the preceding weekend. That he posed a risk to staff safety when he was admitted to class that day, was known. 826 The situation to which TAS Mary was exposed on 15 March was extraordinary from any point of view. The failure to implement the available paper safety systems designed to protect her from psychological injury, when BH again engaged in violent and threatening behaviour, puts beyond doubt that the defendant could not make out a defence. 827 The same conclusion must follow in the case of TAS Su. 828 Prior to 10 March, she was known to have serious concerns as to her safety. She, too, had been exposed to incidents of detainee misbehaviour at work. On 10 March, she was involved in the incident where no response was provided to the duress alarms sounded in relation to TD's behaviour. She was also aware of TAS Mary's failure to have that system failure addressed by the Principal in the ensuing days. There was no investigation into what had occurred and no steps taken to ensure that the failure did not recur. On 15 March, TAS Su observed what unfolded with BH in the quad, at a time when the problems with the duress alarm system had still not been addressed. 829 As at 15 March, it was known to the defendant that repeated exposure to incidents involving detainees put staff, including TAS Su, at risk of injury. The paper policies particularly designed to detect and prevent psychological injury from such exposure, from manifesting, were not in operation. Had they been, TAS Su could herself have been trained to identify that being so worried about her safety that she was vomiting on her way to work, meant that she was at risk of injury. It was known to the defendant that staff might themselves not be able to detect that they were sustaining such an injury. 830 Despite this both the Principal and her A/P had detected that TAS Su was not coping. Had the paper systems designed to prevent psychological injury been operating, steps would have been taken to deal with TAS Su's apparent vulnerability. They were not. In reality, the defendant took no steps to address the risk of injury to TAS Mary or TAS Su, despite the fact that they were not coping having been identified. 831 I have found that there was no doubt that what occurred on 15 March contributed to the psychological injury which TAS Su suffered. That she did not seek medical attention until after the events of 17 March, does not detract from that conclusion. 832 On the evidence, TAS Su had an unusually severe reaction to the series of incidents to which she was exposed in the period of the charges. TAS Su was certainly less exposed to risk on 15 March than was TAS Mary. I am unable to accept, nevertheless, that it was established that TAS Su was not a person of normal fortitude, given the evidence as to her work at Putland, over the course of her employment and what she was exposed to, without injury, before March 2004. That a person of normal fortitude would not have been injured at all, given what TAS Su had already been exposed to at Putland and what occurred on 15 March, so far as she was concerned, was not established on the evidence. 833 I do not accept the views expressed by some witnesses that what had occurred on 10 and 15 March, was trivial, even so far as TAS Su was concerned, for reasons which I have explained. In this respect, what may not be overlooked is the expert evidence that people who are repeatedly exposed to such incidents, may finally be injured, by what may seem to be a relatively minor incident, in the scheme of such incidents. It was Ms Koussa's view that, that was what happened to TAS Su. On the evidence I accept that there was a proper basis for that opinion. 834 In those circumstances, it may not be concluded that the defendant established the s 28(a) defence, in relation to either TAS Mary or TAS Su. 835 Nor did the defendant establish that the necessary balance of factors which would have averted the risk, outweighed the nature, likelihood or gravity of the risk. Given the failure to ensure that the paper systems designed to prevent psychological injury manifesting were in operation at Putland, there was no basis on which this could have been established. Was the defence established in the case of the 15 - 17 March charge? 836 For the same reasons, I am unable to conclude that the defendant made out a defence in relation to this charge. The failure to have its written safety policies addressed to averting the risk of psychological injury operating, put this conclusion beyond doubt, both in the case of TAS Mary and TAS Su. 837 I have dealt with TAS Mary's situation in the two earlier charges. This charge covers the same period and circumstances, so far as she was concerned. 838 In TAS Su's case, that what she was exposed to on 17 March finally resulted in the risk of a psychological injury materialising, cannot be doubted on the evidence. TAS Su had been involved in various incidents before March 2004, one very serious in 2003, which she described as a 'blood bath'. While not directly at risk of physical injury on 17 March, that what she was exposed to in class that day resulted in a psychological injury, was established. 839 Again, that TAS Su might be subjected to detainee behaviour which could cause her either physical or psychological injury in the course of her work at Putland, was not only reasonably foreseeable, it was actually foreseen in the defendant's written policies. The detainees involved in the incident on 17 March were also assessed by the defendant as posing high risk to staff safety, all detainees at Putland were assessed to pose such a risk. That they might engage in such an incident, so as to put the safety of TAS Su at risk, when she was called upon to work with them, was thereby also actually foreseen. 840 The Principal and her A/P had noticed that TAS Su was not coping and yet nothing was done to help her and to ensure that an injury did not result from further exposure to another incident of detainee violence, which manifested on 17 March in class, when she had to call for assistance using her duress alarm. 841 On the evidence, TAS Su had an extreme reaction to the risks to which she was exposed in this period - a series of incidents of low levels in themselves, so far as she was concerned, but in close proximity to each other. The extent of her injury, it seems to me, is irrelevant. Like other Putland staff, she was known to be at risk of psychological injury as the result of repeated exposure to the violent and threatening behaviour which the defendant could not prevent from breaking out in class, where she worked. It is the fact of the injury with which the charge and any defence is concerned, not its extent. 842 It was also known that with repeated incidents an incident even minor of itself, could finally result in a psychological injury. That was TAS Su's situation as Ms Koussa and her treating doctors concluded. The defendant's policies were designed to detect and deal with such a situation, so as to prevent an injury manifesting. They were not operating. Despite this, the Principal detected that TAS Su was not coping, yet took no steps to assist her. Plainly, those steps were available to be taken, the risk of injury having been identified. In the circumstances, that TAS Su suffered a more severe injury than others might have, from what she was exposed to, cannot be a basis upon which any defence could be established. 843 Again, the defendant also did not establish that the necessary balance of facts which would have averted the risk, outweighed the nature, likelihood or gravity of the risk. It follows that it must be concluded that no defence was established as to this charge. Conclusion

The charges brought 3 The legislative scheme 7 Admissions 8 The issues 9 The evidence 11 What was Putland and how was it operated? 12 What systems had the defendant established at Putland to ensure safety? 14 What were the defendant's safety systems directed at? 15 The practical systems in operation at Putland 17 Duress alarms and radios 17 Assistance from DJJ staff and A/Ps 18 Morning briefings 19 Breaks 20 The points system 21 Information provided to staff, including the alert system 22 Exclusion of detainees from class 23 The A/P supervision system 23 The OHS committee 24 Staff training 24 The paper systems 25 Government wide safety initiatives 25 The 2002 DET 'Guide to Occupational health safety and injury management' 27 The DET/DJJ agreement 29 The LEATCC Policy 30 The Taking Safety Seriously policy 32 The 2000 'Management of serious incidents Guideline' 33 The 2003 Putland Management Plan 37 OHS Committee activities and detainee risk assessment 38 Was there ongoing staff discontent at Putland as to safety matters? 44 What was the statutory scheme under which Putland was operated and how did that legislation interact with the obligations imposed on the defendant by the OHS Act? 46 What occurred at Putland on 10 March, especially so far as TAS Mary was concerned? 51 What occurred at Putland on 15 March, especially so far as TAS Mary and TAS Su were concerned? 61 What occurred at Putland between 10 and 17 March, especially so far as TAS Mary and TAS Su were concerned? 71 Psychological injury at work - what is 'occupational stress' and 'social support' and what was the expert evidence 75 Occupational stress 76 Ms Knox Haly's opinions 80 Professor Tennant's views 86 Mr Rees' evidence 89 Dr Brown's opinions 95 Did TAS Mary and TAS Su suffer any psychological injury? 100 TAS Mary's controlling personality 102 TAS Su's particular vulnerability 104 Other staff were not injured 107 What is the relevant applicable law so far as psychological injury is concerned? 107 Was TAS Mary at risk from TD on 10 March? 110 What was the risk to TAS Mary which arose on 10 March at Putland? 113 Notice to the defendant 113 Did teacher Ron act appropriately? 115 Did TD return to class unaccompanied? 117 What time did TD return? 118 Did TAS Mary use her duress alarm? 119 Should teacher Ron and TAS Mary have locked the classroom door? 121 Was TD unsupervised? 123 Should TAS Mary have called for help from her classroom? 124 Other system failures 125 The Principal's evidence 126 Subsequent events on 10 March 127 The causal connection between the defendant's acts and omissions and the materialisation of this risk 128 Were the particulars of the charge established? 138 The events of 15 March 2004 - Matter Number IRC 1390 of 2006 167 What was the risk to which TAS Mary and TAS Su were exposed? 168 What information did the staff have about BH before 15 March? 173 Whether the School Rule system was a cause of violent or aggressive behaviour 177 Did TAS Mary have any basis for concern for her safety on 15 March? 178 Should teacher Ron and TAS Mary have left the room when directed to do so by the Principal? 183 Causal connection 185 Particulars 190 10 - 17 March Matter Number 1392 of 2006 208 The social support charge - was it inadequately framed? 208 The drafting 209 Were the events of 10 and 17 March relevant to this charge? 211 Did the exposure to the risk occur at work? 212 The allegation that the place of work was psychologically unsafe 212 The absence of social support producing a psychological injury 214 Cumulative trivial stress 216 Vocational concerns 218 The defendant's systems - risk assessment and risk control 218 The causal connection between the defendant's acts and omissions and the materialisation of the risk. 221 The expert evidence as to social support at Putland 221 Inadequate management support 223 Was it necessary for the prosecution to establish that TAS Mary and TAS Su had symptoms of psychological injury, or a known susceptibility to such injury, before it was sustained, in order to make out the charge? 229 The approach that safety was a matter for the DJJ to ensure and the events of 10 - 15 March 233 BH and 15 March 235 17 March and TAS Su 238 The particulars 238 The proper construction of s 28(a) of the OHS Act, the defence on which the defendant relied in each case, particularly in relation to the concept of reasonable foreseeability. 257 How does the statutory defence operate, especially in the context of a charge relating to a psychological injury? 258 Was the defence established in the case of the 10 March charge? 267 Was the defence established in the case of the 15 March charge? 274 Was the defence established in the case of the 15 - 17 March charge? 276 Conclusion 278

Cahill v State of New South Wales

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Judgment (613 paragraphs)

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