Maurice Michael O'Sullivan v The Crown in the Right of the State of New South Wales

PROSECUTOR Mr B Docking of Counsel SOLICITORS Ms J Wright Jones Staff & Co

LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson of Senior Counsel Mr M Shume of Counsel SOLICITORS Mr J Murn Department of Education and Training

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

MAURICE MICHAEL O'SULLIVAN V THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Prosecution under s15(1) of the Occupational Health and Safety Act 1983.

MAURICE MICHAEL O'SULLIVAN V THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Prosecution under s15(1) of the Occupational Health and Safety Act 1983.

MAURICE MICHAEL O'SULLIVAN V THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Prosecution under s15(1) of the Occupational Health and Safety Act 1983.

MAURICE MICHAEL O'SULLIVAN V THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Prosecution under s15(1) of the Occupational Health and Safety Act 1983.

MAURICE MICHAEL O'SULLIVAN V THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

Prosecution under s15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2003] NSWIRComm 74

1 On the applications of Mr Maurice O'Sullivan, General Secretary of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the prosecutor"), the Crown in the Right of New South Wales (Department of Education and Training) ("the defendant") was summonsed to appear before the Court to answer five charges that it had committed an offence under s15(1) of the Occupational Health and Safety Act 1983 ("the Act"). The Charges 2 Two separate assaults by male students exhibiting violent behaviour at the Kurrambee School for Specific Purposes, Werrington ("Kurrambee") gave rise to the following five charges, contained in summonses filed by the prosecutor on 8 February 2001:

3 The charge in Matter No. IRC 607 of 2001 was as follows: Between about 9 February 1999 and 6 April 1999 at the Kurrambee School for Specific Purposes, Werrington, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, Janelle Crompton and Carmel Muggleton in that there was not provided adequate human resources contrary to section 15(1) of the Occupational Health and Safety Act 1983.

1. The defendant operated the Kurrambee School for Specific Purposes. 2. The defendant employed Lorraine Kay Griffiths, Janelle Crompton and Carmel Muggleton (the employees) as Teacher's Aides Special. 3. There was a potential risk to the health, safety and welfare of the employees, in that there was a risk of the employees being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. 4. On 9 February 1999, Ms Griffiths suffered assaults by student AK occasioning her physical and/or mental harm. 5. In or about March 1999, Ms Muggleton suffered assaults by student AK occasioning her physical harm. 6. The defendant's failures and/or omissions were any or all of the following: (a) Allowing the number of teachers and/or Teacher's Aides Special to comprise the available human resources. (b) Failing to provide additional human resources. 7. There was a causal nexus between the risk to the health, safety and welfare of the employee as dealt with in paragraph 3 above, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 6 above. 8. Additionally, or in the alternative, there was a causal nexus between any or all of the injuries to the employee as dealt with in paragraphs 4 and 5, and any, or all, of the aspects of the defendant's failures and/or omissions as deal with in paragraph 6. 5 The charge in Matter No. IRC 608 of 2001 was as follows: On 9 February 1999 at the Kurrambee School for Specific Purposes, Werrington, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, in that there was not in place adequate emergency equipment to call for assistance contrary to section 15(1) of the Occupational Health and Safety Act 1983. 6 The particulars of that charge were: 1. The defendant operated the Kurrambee School for Specific Purposes. 2. The defendant employed Lorraine Kay Griffiths (the employee) as a Teacher's Aide Special. 3. There was a potential risk to the health, safety and welfare of the employee, in that there was a risk of the employee being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. 4. On 9 February 1999 the employee suffered assaults by students SH and AK occasioning her physical and/or mental harm. 5. The defendant's failures and/or omissions were any or all of the following: (a) Allowing the employee to work in a classroom in which there was only an ordinary telephone system. (b) Allowing the employee to work in a classroom in which there was not fitted any form of duress alarm system. (c) Failing to provide the employee with a personal duress alarm. (d) Failing to provide the employee with a personal mobile telephone. 6. There was a causal nexus between the risk to the health, safety and welfare of the employee as dealt with in paragraph 3 above, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 5 above. 7. Additionally, or in the alternative, there was a causal nexus between any or all of the injuries to the employee as dealt with in paragraph 4 above, and any, or all, of the aspects of the defendant's failures and/or omissions as deal with in paragraph 5.

7 The charge in Matter No. IRC 609 of 2001 was as follows: Between about 9 February 1999 and 6 April 1999 at the Kurrambee School for Specific Purposes, Werrington, and elsewhere, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, Janelle Crompton and Carmel Muggleton, in that there was not provided any or any adequate information and instruction in relation to student AK contrary to section 15(1) of the Occupational Health and Safety Act 1983.

The defendant operated the Kurrambee School for Specific Purposes. 2. The defendant employed Lorraine Kay Griffiths, Janelle Crompton and Carmel Muggleton (the employees) as Teacher's Aides Special. 3. There was a potential risk to the health, safety and welfare of the employees, in that there was a risk of the employees being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. 4. On 9 February 1999, Ms Griffiths suffered assaults by student AK occasioning her physical and/or mental harm. 5. In or about March 1999, Ms Muggleton suffered assaults by student AK occasioning her physical harm. 6. The defendant's failures and/or omissions were any or all of the following: a) Allowing student AK to attend the school without any or any adequate information concerning any behavioural problems or details of any strategies which could assist the school staff to manage or control his behaviour. b) Failing to follow the procedure for enrolment in relation to student AK. c) Failing to instruct that only male Teacher's Aides Special were to employed in AK's class and females were not to be employed. 1. There was a causal nexus between the risk to the health, safety and welfare of the employees as dealt with in paragraph 3 above, and any, or all, of the aspects of the defendant's failures and/or omissions dealt with in paragraph 6 above. 2. Additionally, or in the alternative, there was a causal nexus between the injuries to the employee(s) as dealt with in paragraphs 4 and 5, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 6."

9 The charge in Matter No. IRC 610 of 2001 was as follows: Between about 9 February 1999 and 9 August 1999 at the Kurrambee School for Specific Purposes, Werrington, and elsewhere, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, in that there was not provided any or any adequate employee assistance and/or counselling contrary to section 15(1) of the Occupational Health and Safety Act 1983.

1. The defendant operated the Kurrambee School for Specific Purposes. 2) The defendant employed Lorraine Kay Griffiths (the employee) as a Teacher's Aide Special. 3) There was a potential risk to the health, safety and welfare of the employee, in that there was a risk of the employee being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. 4) On 9 February 1999, the employee suffered assaults by students SH and AK occasioning her physical and/or mental harm. 5) On 8 March 1999, the employee suffered an assault by student JB occasioning her physical and/or mental harm. 6) The defendant's failures and/or omissions were any or all of the following: a) Failing to provide for about six months any or any adequate employee assistance and/or counselling. b) Allowing the employee to return to work after 9 February 1999 without providing any or any adequate employee assistance and/or counselling. 7) There was a causal nexus between the risk to the health, safety and welfare of the employee as dealt with in paragraph 3 above, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 6 above. 8) Additionally, or in the alternative, there was a causal nexus between the mental harm to the employee as dealt with in paragraphs 4 and 5 above, and any, or all of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 6.

11 The charge in Matter No. IRC 611 of 2001 was as follows: Between about 9 February 1999 and 8 March 1999 at the Kurrambee School for Specific Purposes, Werrington, and elsewhere, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, in that there was not provided any or any adequate training contrary to section 15(1) of the Occupational Health and Safety Act 1983.

1. The defendant operated the Kurrambee School for Specific Purposes. 2) The defendant employed Lorraine Kay Griffiths (the employee) as a Teacher's Aide Special. 3) There was a potential risk to the health, safety and welfare of the employee, in that there was a risk of the employee being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. 4) On 9 February 1999, Ms Griffiths suffered assaults by student AK occasioning her physical and/or mental harm 5) The defendant's failures and/or omissions were any or all of the following: a) Failing to provide any or any adequate training and reinforcement in the form of a self-protection course. b) Failing to provide any or any adequate training and reinforcement in the form of communication strategies. 6) There was a causal nexus between the risk to the health, safety and welfare of the employee as dealt with in paragraph 3 above, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 5 above. 7) Additionally, or in the alternative, there was a causal nexus between the injuries to employee(s) as dealt with in paragraph 4, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 5.

13 The same risk was identified in each charge: that of an employee "being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm".

14 On 22 June 2001, the defendant pleaded not guilty to each of the charges and raised no objection to the prosecutions being heard together. On 14 November 2001, the prosecutor advised the Court that he did not intend to press the fifth particular of the charges in Matter Nos. IRC607 and 609, which asserted an assault suffered by Ms Muggleton. However, in response to issues raised by the defendant, the prosecutor advised that it did not intend to remove the earlier references in the charges to Ms Muggleton, to the effect that during the charge period she was an employee exposed to risk. Following the prosecution's opening submissions, the defendant agreed that, in view of the prosecution's stance, it would make submissions as to prejudice arising from any evidence extending beyond the particulars, if and when the need arose. No such submission was made by the defendant and the matter requires no further attention in this decision. 15 The defendant also made the preliminary submission that the last particular of each of the charges, alleging a causal nexus between injuries to employees and a failure by the defendant, raised an issue which was extraneous to liability under the Act. The correct issue for determination, the defendant submitted, was pleaded in the penultimate paragraph of the charges: whether there was a causal nexus between the risk and any failure by the defendant. When invited by the Court to resolve the issue, the defendant elected to raise it again during the course of the proceedings should the need arise. The issue was not raised again. The evidence 16 The Court was assisted by the evidence of two employees of the defendant who had been at Kurrambee for approximately twenty years: the Principal, Mr Harry Terry, and the victim of the assaults, Mrs Lorraine Griffiths, a Teachers' Aide Special. Three other employees of the defendant gave evidence: Dr Jennifer Stephenson, Assistant Principal at Kurrambee from 1997 to 1999, and Mr McKenzie and Mrs Sparrow, both teachers at Kurrambee. Dr Stephenson had been head-hunted by Mr Terry in 1996, the year in which she completed her doctorate in augmentative and alternative communication for children with severe intellectual disabilities. She commenced at Kurrumbee in 1997 and was then released from teaching in 1998 in order to carry out functional assessment (a programme described later in the judgment). Dr Stephenson left Kurrumbee in 1999 to commence a post at the University of Technology as Senior Lecturer in Special Education in 2000. 17 In addition to these employees of the defendant, the following witnesses gave evidence for the prosecution: the prosecutor; Mr Hannan, an industrial officer of the Public Service Association; Ms Merelles, a clinical psychologist who treated Mrs Griffiths; Mr Petrie, behavioural consultant to the Department of Community Services; and Mr White, a probation officer. Neither Ms Crompton nor Ms Muggleton was called to give evidence. No evidence was called by the defendant. The parties agreed to refer to the students throughout the proceedings by their initials, rather than full names. 18 In closing submissions the defendant agreed that the facts were "pretty clear … and largely uncontested" and that there was no issue as to the credit of any of the witnesses. The defendant further submitted that although some areas of evidence were less clear than others because of varying recollections, it did not intend to rely upon any of those discrepancies. In any event, I find that the facts as found below in the judgment have been proven beyond reasonable doubt. 19 There were several reserved rulings as to the admissibility of evidence, or the basis upon which some exhibits should be admitted. 20 Exhibits 7 and 8 (outcomes from behavioural meetings on 5 November 1998 and 16 November 1998); 11 (facsimile from Mr Terry to Mr Manwarring dated 20 May 1999); 18 (Dr Stephenson's course outline for dealing with challenging behaviour); and paragraph 34 of exhibit 24 (Mr Terry's briefing notes) were admitted provisionally on the basis that the defendant may object to their relevance, depending upon future oral evidence. Similarly, the Court's ruling on the relevance of exhibit 13 (the report of clinical psychologist Ms Merrelles) and paragraph 63 of exhibit 2 (Mrs Griffith's first affidavit) was reserved on the basis that, in the absence of any such objection, the documents were to be treated as having been tendered for all purposes. In the event, the defendant did not maintain its objection to these documents on the basis of relevance. 21 Further, the issue of whether exhibit 21 (affidavit of Mrs Sparrow) and exhibit 25 ("briefing notes" of Mr Terry) should be admitted pursuant to s81 or s87 of the Evidence Act, as contended by the prosecutor, was reserved to be dealt with in submissions but not then raised.

22 As mentioned earlier, the essential facts giving rise to the charges were not in dispute. Before describing the assaults it is useful to recount briefly the history and nature of Kurrambee in order to place events in context and to assess the risk identified in the charges, as opposed to focussing solely upon the manifestation of any such risk.

History 23 Kurrumbee, as a School for Specific Purposes, is a school for children with physical, intellectual or psychological disabilities which preclude them from attending a normal school.

24 An enrolment audit of Kurrumbee conducted by the defendant reported that seventy-eight students were declared on the revised Actual Enrolment Return of 10 February 1999. Sixty-seven of these students were classified by Kurrumbee as suffering from severe disabilities, the remaining eleven suffering from moderate disabilities. The audit concluded that three-quarters of these classifications would require verification, due to the lack of substantiating paperwork on file.

25 Mr Terry gave evidence that during his tenure at Kurrambee the student population had changed significantly, from a group of students with moderate intellectual disabilities to a group with a large number of students suffering from severe physical and intellectual disabilities. During that period the number of violent students increased, as did the unpredictability and uncontrollability of the violence. This trend was caused by several factors: in 1982 Kurrambee was opened to students with severe intellectual disabilities and, in the result, six enrolled; in 1986 another thirteen severely disabled students enrolled at Kurrambee following the absorption of a specialised private school by the defendant; and throughout the continued influx of severely intellectually disabled students the more capable students were encouraged to transfer to support classes in mainstream schools.

26 Mrs Griffiths had been employed at Kurrambee continuously from the beginning of the school year, 1982. As a teachers' aide special her duties involved assisting the teacher in implementing individuals' education programs. This could involve working in the classroom, playground, or community and included toileting, washing, cleaning, feeding, positioning and behaviour management. Mr Terry gave evidence that teachers' aides were often required to supervise students without a teacher present, for example, when a teacher had to leave the classroom briefly to assist a student.

27 Mrs Griffiths' evidence of the changing student population at Kurrumbee was consistent with the evidence of Mr Terry. According to Mrs Griffiths, between 1982 and 1992 there were some violent incidents, but these generally involved damage to school property or self-harm, and she did not feel personally at risk. However, Mrs Griffiths stated that from 1993 the school began to accept students transferred from other schools and institutions. These students were often violent, aggressive adolescents, some of whom attacked teachers, ancillary staff and physically vulnerable students, damaged school property and absconded. It was not uncommon for these students to require full-time one-to-one supervision.

28 According to a report (referred to as "briefing notes") prepared by Mr Terry for his supervisor in anticipation of the charges, at the time of the report (undated, but sent under cover of a letter dated 14 February 2001) ninety-one students between the ages of four and twenty were enrolled at Kurrambee, seventy-seven of which suffered from a severe intellectual disability and fourteen of which suffered from a moderate intellectual disability. In addition, the "vast majority" suffered from at least one other physical disability, relating to vision, hearing, spasticity, behaviour, muscular dystrophy, epilepsy, diabetes, autism, cerebral palsy or being fed through a tube. Mr Terry identified three broad bands of students at Kurrambee: those with multiple disabilities; violent (or "challenging") students; and students from support classes in mainstream schools whose needs had not been met.

29 Such a student population imposed significant demands on staff. Mr Terry noted that it was difficult to provide much needed relief from working with students who required manual lifting and positioning and from violent students, when these two groups comprised the student population. Mr Terry also described the difficulties arising from the juxtaposition of unpredictably violent students unresponsive to communication (who, in the past, in Mr Terry's opinion, would have been in psychiatric or more segregated settings) with large numbers of severely physically disabled students, unable to protect or defend themselves from violent behaviour. This problem was underscored by the evidence of Dr Stephenson that there was a percentage of students with psychiatric disabilities outside the "competency" of all teachers.

30 A submission dated 15 December 1997 by Kurrumbee to the defendant for additional resources noted that in the 1997 school year staff reported twenty-five injuries from student violence (which included hitting staff with furniture and other objects, head-butting and scratching) sufficiently serious to be recorded in the school register.

31 Notes of staff meetings held on 5 November 1998 and 16 November 1998 reinforced the evidence that violence against staff and other students (particularly physically vulnerable students) had been a matter of concern for some time. Some solutions were suggested in a "brainstorming session" by staff, including the provision of a "withdrawal area"; inviting WorkCover to inspect and assess the school in the context of student violence against staff; requesting extra staff from the defendant; and training and development. According to Mrs Griffiths, as at 8 March 1999 none of these suggested solutions had been implemented.

32 Mr McKenzie gave evidence that although he could not recall whether he had been to these particular meetings, he had been to many other meetings where appropriate training and development had been raised in the context of staff concerns about student violence. The following extract of Mr McKenzie's evidence in chief concerned the notation "10. Provide appropriate T&D - prevention and protection" from the staff meeting notes of 5 November 1998: Q. I just want to refer you to Exhibit 7 to see if you can assist, "Identification number 10; provide protection to T & D - prevention and protection." A. Yes.

Q. Accepting the confines of what you said a few answers ago, where you have been to meetings of this type of agendas, have you been at a meeting, and I am talking in 1998, where that issue, number 10, had been discussed? A. I have been to many meetings where that issue had been discussed.

Q. The term only, "T & D"? A. Training and Development.

Q. The reference to prevention and protection, what does that mean? A. They are pretty self explanatory; to prevent - if I go back a little perhaps and give some explanation of these. At around that same time, staff had been experiencing and expressing concern about students with violent behaviour in the schools, and we had addressed some of those from time to time in terms of running training and development programmes, passive defence programmes for our staff, behaviour management courses, and so on. We had even - well, one of Jennifer Stephenson's roles was, in fact, in training us to better handle students with behaviour - challenging behaviours.

Sometimes the purposes of these sorts of meetings was as much to debrief and to allow staff to express their concerns, certainly to bring about an outcome where it was possible. But, lots of times it had another motivation; to allow staff to just talk about the way they were feeling about the way things were happening. Some of the things that are recorded in here are an extension of that particular thing. The identified exclusion, you will notice it was a brain storming session and the ultimate results of that would have been put up on the wall indicating one of the things is that we could have some T & D to prevent this sort of behaviour occurring and to protect ourselves from this happening.

Q. What I am specifically getting to, if you are able, to clarify that reference to protection, training and development, what that meant? A. I'm not even sure what that means, and I'm not sure if anybody at the meeting knew what it meant, because we didn't have the answers. We had tried, as I said a moment ago, some passive defence courses. That was a protection type thing.

Q. Did you yourself attend one of the passive courses? A. Yes, I certainly did.

Q. When was that? A. Some time prior to this.

Q. I appreciate none of us have a calendar in our memory, but as best you can recall? A. It would have been probably within the two year period prior to that.

Q. How long did the passive self defence course go? A. Four, one or two hour sessions, after school, and we had a very high proportion of the staff that attended that.

Q. What type of thing did you learn there? A. How to defend yourself passively against a physical attack. If somebody comes at you from behind, if somebody tries to kick or hit you, and we actually practised some of the movements to protect ourselves passively.

33 On or about the first day of the school year, 1999, the Penrith District Office Special Education Consultant, Ms Julie Edwards, advised Mr Terry by telephone that the District Office had approved the enrolment at Kurrambee of two new students, including fifteen year old AK. These students came from a residential school institution for students with severe behavioural problems, the Hall for Children, which had been closed.

34 The previous year, Kurrambee had received a student from the Hall for Children, and a case-worker had been employed by the Department of Community Services ("DoCS") to facilitate the student's transition. The case worker visited Kurrambee several times and informed the staff of the student's needs, behaviour and strategies to manage that behaviour. By way of contrast, no transition programme covered the enrolment of the two students in 1999 and, according to Mr Terry's notes of 14 February 2001, the only information provided to Kurrambee in relation to AK was Ms Edward's verbal advice that AK had a history of violent behaviour. Under cross-examination about his conversations with Ms Edwards, Mr Terry stated that, in the process of trying to obtain information, he remembered being advised that following the closure of the Hall for Children information was difficult to obtain. Mr Terry could not remember whether Ms Edwards told him this directly or whether his deputy spoke with Ms Edwards, and subsequently advised him of the result. No information was provided by AK's guardian, DoCS.

35 AK's mother, Mrs K, completed the enrolment forms for AK on 28 January 1999 at the school in the presence of Mr Terry. Under the heading "medical problems" on the defendant's enrolment form, Mrs K wrote simply "epilepsy, behaviour problems". On the Kurrambee enrolment form, in answer to "special precautions that should be taken with the student regarding supervision in the playground", Mrs K wrote "runs away (McDonalds)". Mr Terry gave evidence that he asked Mrs K about AK's behaviour, but her answers did not give any indication of the intensity or severity of the violence AK exhibited on 9 February 1999. However, he was used to mothers understating such behaviour. No other paperwork was provided. Kurrambee later received an offer of enrolment for AK dated 6 April 1999 from the District Office.

36 A consultant to DoCS, Mr Petrie, had prepared a detailed report entitled "Interim Reactive Strategy Report" listing strategies for use in AK's residence and in the community to ensure the safety of AK, staff, other residents and the general public during AK's periods of aggression. At the time of writing the report, Mr Petrie, formerly a clinical nurse with experience in behaviour management, ran training courses and workshops for governments and private organisations focussing on people with disabilities.

37 The report had been prepared over a number of weeks, based on significant contributions from AK's mother, carers and teachers and upon hours of personal observation of AK in his residence. Mr Petrie gave evidence under cross-examination that the triggers listed in the report, although observed in AK's residence (and generally not in the school attached to the Hall for Children), would be more likely than not to trigger AK's violence in any environment.

38 The report stated bluntly that AK was aggressive; aggression could be expected at any time and that, when aggressive, AK would often physically injure others. Mr Petrie recorded the following particular behaviour: [AK] will throw objects at others (particularly staff); hit others with his fists or an open hand; push others over; kick others with his feet, targeting their knees, shins, groin or head, often causing physical injury.

39 Mr Petrie listed a broad range of triggers for AK's aggression (not doing what he wanted to do; being told to do something he did not want to do; not being understood; boredom; and being physically "restrained" (for example, by having a hand placed upon his shoulder)) and concluded with a warning to expect aggressive behaviour at any time. Mr Petrie stressed that only people who knew AK well and were confident and competent in managing his behaviour should be left alone with him. Mr Petrie advised carers, in the event of threatening behaviour, to maintain a distance of at least two metres and to be aware of all available exits and stated that, if alone in the residence with AK, they should not undertake activities which may pose a problem should they need to leave the house (such as bathing other residents or cooking). Such activities should only be undertaken when two supervisors were present. Staff were exhorted to follow the guidelines closely, at all times, in the interests of safety and there was provision for staff to sign and date a copy of the report to confirm that they had read and understood it.

40 Mr Petrie's report, written on 12 January 1999 and signed by Mrs K on 28 January 1999, was discovered in the school files after the assault in May 1999 when Mrs Griffiths asked Mr Terry if the school had any information on AK. Mr Terry could not explain how or when it came to be there, and advised that he had not read it and did not recall seeing it before finding it in May. Mr Terry stated under cross-examination that the report was unlikely to have come by mail, because it did not bear a "date received" stamp (unless somehow a temporary assistant failed to follow standard procedure, which was unlikely), but enquiries of Mrs K revealed that she had no memory of ever giving the report to the school, indicating that she, at least, did not hand-deliver it. Mr Terry advised under cross-examination that, had he known of the report, he would have shown it or given copies to AK's new teacher and to the teacher's supervisor. Mr Terry's enquiries of these two people indicated that this had not occurred. Further, the reticence of AK's mother to discuss AK's behavioural problems (beyond a general acknowledgement) with Mr Terry on 29 January 1999 makes it most unlikely that such a detailed report was handed over by her at the same meeting.

41 It seems that both parties approached the matter of Mr Petrie's report on the basis that the defendant bore the responsibility of providing adequate information (such as that report) to those who most needed it (those directly involved in the supervision of AK) which clearly did not happen. Neither party raised the manner in which the report was to have been provided as a matter relevant to the determination of culpability or any defence under s53 of the Act. The defendant did not suggest at any time that it had in fact provided the report to the school, or that it was impracticable to do so, either in cross-examination of Mr Terry or in submissions. Nor did the prosecutor ask for an affirmative finding on this point. In that sense, the issue does not strictly require resolution, but in view of my later discussion in relation to the information charge, I will deal briefly with the matter. I have no doubt on the evidence that at the time of the assault on 9 February 1999, Mr Terry and his staff were unaware of the existence of Mr Petrie's report. Nor do I have any doubt that the experienced, dedicated staff of Kurrumbee, sensitive to the issue of aggressive behaviour in severely intellectually disabled students and aware that AK came from an institution for students with severe behavioural problems, were actively searching for such information. Before AK's first day at school Mr Terry made enquiries of Mrs K; enquires were made either by Mr Terry or by his deputy of the defendant; and, in the first week, Mrs Griffiths advised Mr Terry of AK's worrying behaviour and asked Mr Terry if there was any relevant information on AK to which he replied there was not. Finally, I accept Mr Terry's evidence that he was advised by the defendant, either first or second-hand, in response to these enquiries for information, that information was difficult to obtain. I am prepared to infer from these circumstances that the defendant did not provide the report to the teachers and aides who would be responsible for supervising AK. Indeed, I consider any inference to the contrary would be inconsistent with Mr Terry's evidence, in the context of his active search for information.

42 Mr Terry gave evidence (uncontradicted by the defendant) that the defendant's policy for enrolling disabled students was not followed in AK's case. Had it been followed, Mr Terry stated that the request for enrolment would have been considered by a multi-disciplinary panel by reference to an appraisal report and an access request form. If enrolment was offered, copies of these documents would have been sent to Kurrumbee at the same time the offer was sent to the parents. Parents would then contact the school to commence enrolment procedures. In consequence, Mr Terry would have known more about AK's behaviour, which he would have shared with his staff. As it was, he had no real information and was unable to make adequate arrangements to attempt to manage AK effectively.

43 The defendant's brochure "Enrolment of Students in Government Service: A summary and consolidation of policy August 1997", tendered by the prosecutor, contains the following paragraph: Enrolment of Students with Special Learning Needs Students with Disabilities … In each case, when a student with a disability presents for enrolment, it is the responsibility of the principal to ensure that an appraisal of the student's educational needs is carried out. For some students, appraisal will have occurred as part of a planned transition process. For others, the appraisal will take place at the time enrolment is sought.

Appraisals will involve parents or caregivers and will entail consideration of the student's support needs in areas such as curriculum, mobility, social skills, personal care and communication. It will often involve consideration of supporting documentation from medical practitioners and other health and education professionals. District special education consultants are available to assist in this process, in particular, to identify the resources which may be available to support the enrolment.

Requests for enrolment in special classes or special schools are considered by a district placement panel.

The Special Education Handbook for Schools contains descriptions of services available, eligibility criteria for access to services and procedures to be adopted in enrolling students with disabilities. 44 As mentioned earlier, the defendant carried out an audit of enrolment procedures at selected SSPs, including Kurrumbee, in 2000 in order to determine the degree to which the schools complied with the placement and re-appraisal procedures prescribed in the Special Education Handbook. The defendant's objective was to ensure that its policy of staff allocation was adhered to by checking that individual schools were accurately stating the number and severity of disabled students enrolled.

45 In the case of Kurrumbee, the auditor concluded that the school files were poorly documented. For example, six of the seven students enrolled after March 1998 lacked Appraisal Reports or indeed sufficient information to verify their disability classification. The auditor noted that relevant student information had been sent to the District Guidance Officer but did not appear on the school files, suggesting a break down in local registry procedures. In all, the classification of approximately 75% of the students could not be verified due to the fact that few students were subject to a formal annual review.

46 There is a discrepancy in the evidence as to whether AK actually started school on Friday 29 January 1999 or Tuesday 2 February 1999 but neither party attached any significance to it in submissions and I do not consider that it requires resolution. Mr Terry gave evidence that although some school records indicated 29 January 1999, the correct date was recorded on the school roll: 2 February 1999. Mrs Griffiths and Mrs Sparrow gave affidavit evidence that AK started school on 29 January 1999.

47 Between AK's first attendance and 9 February 1999, Mrs Griffiths, concerned at AK's behaviour in the absence of his teacher, Mr Hamilton, discussed AK with Mr Terry. In particular, the discussions related to AK's unauthorised excursions from the classroom and aggressive behaviour (throwing himself to the ground; kicking) upon being retrieved by either Mrs Griffiths or the relief teacher, Mrs Sparrow. Mrs Griffiths and Mrs Sparrow were also concerned about AK's daily sexual advances. Mrs Griffiths asked both Mr Terry and Mr Hamilton if either had any information about AK; neither did.

48 In the first half of 1999, Mrs Sparrow was engaged as a "release-from-face-to-face teacher" which meant that she worked one day a week in AK's class. Mrs Sparrow gave evidence that from her first day in AK's classroom he exhibited violent behaviour such as kicking staff, students and occupied wheelchairs; punching others' heads, shoulders, backs and arms with clenched fists; throwing large items and pushing objects such as tables, chairs and shelf units or cupboards over. This evidence, in conjunction with Mr Petrie's detailed report commissioned for the purpose of ensuring the safety of people who came into contact with AK, clearly demonstrated that AK was a dangerously violent student.

49 The New South Wales Teachers' Federation had called a State-wide strike on 9 February 1999. In anticipation of the strike, Mr Terry conformed to his usual strike practice: he asked each of his teachers whether they would strike or attend work and then sent a note to guardians to advise whether their child's teacher would be at work. If not, Mr Terry advised guardians that the school would only be able to provide minimal supervision, predominately by aides. Mr Terry gave evidence that, in the event of a strike, principals were instructed by the Director-General of the defendant to keep all schools open. Mr Terry stated that on 9 February 1999, the first full day strike for some time, "it was strongly reinforced on that day that the parents/carers who most accepted minimal care were DoCS and DoCS funded homes."

50 On 9 February 1999, six teaching staff, in addition to the principal, reported for duty, as did 15 teachers' aides. Nine teachers were on strike and one teacher was on sick leave. According to Mrs Griffiths, 42 students attended school that day.

51 Mr Terry was unable to predict accurately the number of students who would attend school on a strike day. Usually, in the event of a strike, the teachers who were present would take their classes from the playground (where the students played before classes on normal days) to their rooms, leaving the students without teachers and any remaining staff in the playground. Optimal supervision arrangements would then be made for the day's classes, depending upon the staff to student ratio and the ages, abilities and behaviour of those remaining students. While this assessment was taking place, the students could be supervised in a group.

52 However, on 9 February 1999 it was raining and the students, unable to play in the playground, were escorted by teachers and aides directly into classrooms as they arrived; other teachers and aides remaining in the classrooms to supervise students who had already been brought inside. This procedure had two immediate consequences: it made the head count more difficult and the change in routine (coupled with the weather) unsettled the students. The task was complicated by the fact that mobile students would run away if a staff member left the classroom to place another student.

53 In assessing the needs of the school for the day, Mr Terry was assisted by one of his teachers, Mr McKenzie, Assistant Principal, who was acting in the capacity of Deputy Principal (the Deputy Principal, Mr Sterry, being on strike). In evidence, Mr McKenzie described his duties on the morning of 9 February 1999 thus: to move the children from the arriving buses to the classrooms; to ensure there was someone in the classrooms to supervise those children; to visit other classrooms to find out which students had arrived in the meantime; and to make decisions about the most effective distribution of staff and students in view of the nature and number of students attending.

54 Mrs Griffiths assisted other teachers and teachers' aides in escorting students to her classroom, which was separated from the adjacent classroom by a bi-fold door. This double classroom was approximately 25m from the nearest classroom occupied on that day. The teacher Mrs Griffiths normally assisted, Mr Hamilton, was on strike, as was the teacher of the adjacent class. Mrs Griffiths agreed with the aide of the adjacent class, Ms Crompton, to open the door between the two classrooms for easier supervision. According to Mrs Griffiths' statement and Mr Terry's notes to his supervisor dated 19 February 1999, of the eleven students in the two classes only one was absent that day. Each of the attending students was severely intellectually disabled, some were in wheelchairs and six of the eleven had severe behavioural disorders. Four were wards of the State.

55 Mrs Griffiths advised Mr Terry that she did not wish to be left alone with her class without a replacement teacher, nor in a shared arrangement with Ms Crompton without at least one teacher present. This was a long-standing matter of some importance to her. Mr Terry agreed, and gave evidence that he advised Mr McKenzie, in Mrs Griffith's presence, to assist Mrs Griffiths. Mr McKenzie denied speaking with Mr Terry as to whether he should stay or leave Mrs Griffiths' classroom. Mrs Griffiths gave evidence that Mr Terry "said to Mr McKenzie that he would be in charge of those two rooms". Regardless of what conversation took place, there is no dispute that Mr McKenzie left the classroom shortly thereafter.

56 One of the students in Mrs Griffiths' class who attended that day, JB, was autistic and particularly difficult and violent. Mrs Griffiths gave evidence that he had been at Kurrumbee for more than a year, was known to be physically aggressive to both staff and other students, and had absconded from the school on several occasions. According to Mr Terry, JB could not be managed without his teacher, Mr Hamilton. JB's disabilities were so great that outside school hours he had the assistance of two dedicated, full-time carers and at times he required one-to-one supervision at the school. Mrs Griffiths stated that this was known in the school as "James Duty".

57 The circumstances of 9 February 1999 provoked Mr Terry to take the unusual step of "immediately" asking JB's carers, upon arrival, to take him home again, believing that it was not safe for students, teachers, aides or JB himself, should he remain without adequate supervision. Under cross-examination Mr Terry stated that: There was no way we could provide a safe environment for him [JB], nor the other students in his class. AK's behaviour was not known to me of the same intensity. The notion of asking a parent or carer to take a student home was foreign to the culture of the Department and certainly foreign to me and I felt ill at ease doing so, but when doing a quick mental risk assessment I found it was intolerable to have JB at school and therefore I had to get him out of the school for everyone's protection, including his own. 58 Mr Terry referred to this decision in a somewhat ambiguous manner in a letter to his supervisor, Mr Robert Manwarring, dated 19 February 1999. This letter was not put to Mr Terry in cross-examination, and does not contravene his evidence, which I accept. The fact that Mr Terry communicated this decision to JB's carers as they arrived to deliver JB indicated that he had made the decision beforehand, or that it was such an obvious requirement it could be made immediately, should JB present. Mr Terry gave evidence that had he known of AK's behaviour, he would have had "no hesitation" in making the same request of AK's carers and that, in view of AK's violence, he "would not have been able to come to any other decision". JB's carers declined to take responsibility for this decision and Mr Terry had to make three telephone calls to track down the appropriate DoCS officer in Katoomba and then wait for him to obtain approval from a more senior officer and call back. In all, Mr Terry was away from Mrs Griffiths' classroom for approximately 15 minutes during which time JB was in the double classroom, apparently under the supervision of Ms Crompton, until he absconded. Just why JB was placed in the general school population in these circumstances, rather than being the subject of special care, was not explained.

59 Meanwhile, in the confusion of the morning and in accordance with his perception of his duties, Mr McKenzie left Mrs Griffiths' classroom to continue the head-count in other classrooms, thereby leaving Mrs Griffiths alone with Ms Crompton in the adjoining room (at that time). He gave evidence that he had not noticed any of the children in the double classroom displaying inappropriate behaviour; if he had, he would not have left.

60 Mrs Griffiths described the students during this time as very restless, some throwing classroom objects around the room, some crying, and some screaming a lot. It was very noisy. The following events took place in a matter of minutes. JB become very agitated when another violent student, SH, repeatedly threw a heavy cassette player onto the classroom floor in the direction of NK. According to the enrolment audit, SH had been at the school since at least 1987 and was, in fact, specifically mentioned (along with nine others, including JB) in the staff meeting notes of 5 November 1998 in relation to violence by students against staff.

61 NK, a student without hands or legs, was restricted to a wheel chair and unable to defend himself. Mrs Griffiths moved NK away from SH to the adjoining classroom, and then returned, only to be struck without warning by SH. Mrs Griffiths, by this time concerned at the threatening manner in which she perceived AK to be advancing upon NK, could not recall where SH struck her.

62 Mrs Griffiths moved to stand between NK and AK in order to protect NK, whereupon AK kicked her on her upper right leg. At this point JB absconded. Ms Crompton called out to Mrs Griffiths that this had happened and then pursued JB, leaving Mrs Griffiths, extremely anxious, alone to supervise the remaining nine students. AK immediately kicked Mrs Griffiths again and then with both hands raised a chair above his head. When asked under cross-examination where she was in the classroom when this happened, Mrs Griffiths replied: Oh, as I say - because when Mrs Crompton left I knew I had to get to the phone or I was going to try and push NK out of the door. As I was making my way in that direction and I could not go across the room because there was furniture and equipment all in the middle of the room.

63 Mrs Griffiths attempted to remove NK to safety, outside the double class-room, when her way was blocked by AK, who barred the door, again raising the chair above his head.

64 Mr Hogkinson, Senior Counsel for the defendant, suggested to Mrs Griffiths in cross-examination that it was not until AK barred her exit that she decided to get to the telephone, but she denied this in a manner consistent with her answer extracted above: Q. And it is at that point that you decided that you had to get to that telephone? A. No, it was not at that point, I was going to get around after I pushed NK out of the doorway and I could have then got to the phone.

65 Paragraph 38 of Mrs Griffiths' statement dated 24 November 2000 described what happened next: I swung [NK's] chair around so I could use the telephone on the classroom wall. I contacted Harry, and immediately [AK] kicked me in the back and the pain made me cry out. I was still holding the telephone, and Harry asked "Are you being attacked?" I answered "Yes". I was still standing with the telephone in my hand when Harry Terry ran into the classroom.

66 A map of the classroom annexed to Mrs Griffiths' second affidavit indicated that the telephone was on a wall approximately two metres from the door. Mrs Griffiths stated in her affidavit that she had to face the wall, with her back to AK, in order to use the telephone. According to Mrs Griffiths' affidavit, if she had been aware of Mr Petrie's report, and of AK's proclivity for violence, she would have used the telephone to call for assistance before Ms Crompton left the room.

67 Mr Terry travelled the intervening 65m as quickly as he could, restrained AK and sent Mrs Griffiths away. Mrs Griffiths, unable to stop crying, had some tea and then advised Mr Terry that she was going home. Mrs Griffiths' daughter tried to persuade her to see her general practitioner straight away, but she declined to do so until her husband persuaded her to go the next day.

10 February 1999 - 7 March 1999 68 On 10 February 1999, Mrs Griffiths saw her longstanding general practitioner, Dr Roberts, who recommended that she lodge a workers' compensation claim, which she did, taking three weeks' leave. During this period Mr Terry contacted Mrs Griffiths a number of times to see how she was. At the end of this time, contrary to Dr Roberts' advice, Mrs Griffiths determined that she was well enough to return to work, and did not need to see Dr Roberts again. Mrs Griffiths returned to work on or about 1 March 1999.

69 On 8 March 1999, Mrs Griffiths was designated to supervise JB in the playground. JB disrobed in the toilets and then ran back into the playground. Mrs Griffiths gave evidence that she retrieved JB's clothing, and in the meantime Mr Terry, in the playground during a break, distracted him. Mrs Griffiths approached them, intending to place the clothing on a nearby seat when JB unexpectedly swung around and grabbed Mrs Griffiths' glasses, scratched her face in the process and then threw the glasses across the playground.

70 Although Mr Terry could not remember precise details of the incident, he agreed in cross-examination that it was most likely that he caught JB's attention in order to interact with him and reinstate order. Mr Terry recalled talking to Mrs Griffiths and then seeing JB coming "at some speed" across to Mrs Griffiths. JB then unexpectedly grabbed at Mrs Griffiths' glasses, hitting her in the face. According to Mr Terry's evidence, JB "had a habit of ripping glasses off and throwing them, but when he ripped glasses off people's faces, he didn't do it gently…".

71 Mrs Griffiths, although upset, returned to duty after a brief visit to the first aid room until a further but insignificant mishap triggered uncontrollable crying. Mrs Griffiths was taken home, placed on workers' compensation for a period of months by Dr Roberts, whom she saw immediately, and had not returned to work at the time of giving evidence.

72 Under cross-examination Mr Terry advised that following 8 March 1999 he kept in regular contact with Mrs Griffiths, either weekly or fortnightly, motivated by concern for a staff member. Although Mr Terry did not recall discussing the defendant's Employee Assistance Programme during these conversations, a facsimile received by Mr Terry on 1 April 1999, and sent by him to the defendant on 13 May 1999 in relation to Mrs Griffiths' workers compensation claim, recorded in Mr Terry's handwriting that Mrs Griffiths was to see someone from the Employee Assistance Programme "next week". Mr Terry was unable to recall when he recorded his comments, and concluded that it must have been between 1 April and 13 May. The only suggestion that the defendant (through Mr Terry or otherwise) may have offered, facilitated or recommended any psychological treatment or rehabilitation before Mrs Griffiths was contacted by a staff welfare officer in July, was the following inconclusive statement of Mr Terry in relation to the facsimile under cross-examination: Q. And you see the reference in there to discussion with Lorraine Griffiths about EAP? A. Yes. Q. Does that help you in any sense having had a discussion with her or not about it? A. To answer - my memory - whether I raised it rather than my understanding is that one of my other staff members had suggested that she go to an EAP and if my memory serves me correctly I then indicated hadn't I raised that with you and the answer was no.

73 This suggestion was directly contradicted by the evidence of Mrs Griffiths under cross-examination that she contacted the EAP through her own volition, which I accept.

74 Mrs Griffiths confirmed that she saw a psychologist, Mr Heggarty, whose details she had obtained through the defendant's Employee Assistance Programme, but she could not recall when. The Employee Assistance Programme was a counselling service (providing up to six free sessions in a two year period) run by independent psychologists and operated by self-referral or supervisor referral. Counselling could be by telephone or in person and included, amongst other things, "serious incident debriefing" and home visits if appropriate.

75 Mrs Griffiths saw Dr Roberts several times after 8 March 1999. Mrs Griffiths described her treatment during these consultations as consisting of "talking and medication" (as it had in the period from 10 February 1999) but, due to her dislike of "taking medication", she rarely took the medicine prescribed.

76 Mrs Griffiths did not hear officially from the defendant until the staff welfare officer for Kurrambee called her in July to advise that she would be contacted by a rehabilitation officer. Mrs Griffiths first met Ms Nicholls of Rehabilitation Case Management in August 1999, one month after being contacted by the welfare officer. Ms Nicholls referred Mrs Griffiths to a clinical psychologist, Ms Merrells, and Mrs Griffiths commenced fortnightly appointments with Ms Merrells on 11 October 1999. According to Mrs Griffiths, Ms Merrells "taught her relaxation techniques and how to sleep at night".

77 Meanwhile, in September 1999 Mrs Griffiths, feeling "desperate", was referred by Dr Roberts' locum to a psychiatrist, Dr Pusic, with whom she commenced monthly appointments. Dr Pusic persuaded her that she would need to take prescribed medication in order to improve: she complied and felt much better.

78 The only service provider consulted by Mrs Griffiths to give evidence was Ms Merrells, who had no dealings with Drs Roberts or Pusic and, as noted above, did not see Mrs Griffiths until eight months after AK's assault. Accordingly, there was no expert evidence before the Court as to Mrs Griffiths' diagnosis, prescribed treatment or the effect of that treatment in the first month following AK's assault. Ms Merrells gave evidence that people who experience trauma may suffer from acute stress disorder in the first month, and then post-traumatic stress disorder. Although similar, there is a difference between the two disorders in addition to the timing of their manifestation: there is an emphasis of dissociative symptomatology (a sense of detachment; that the world is unreal) during acute stress disorder.

79 There is a risk that individuals with acute stress disorder will develop post-traumatic stress disorder. Ms Merrells considered that assistance from a psychologist "at least" in the first month following a traumatic incident was very important and gave the following reasons in examination in chief: … if we have experienced a trauma, then we are in a physiological state of high arousal in that period following the trauma and support and education at the very least is important in that period following the trauma in order for people to make sense of what is happening to them and without that support and education people are at risk of misconstruing what is happening with them and sometimes worsens their symptoms.

80 Ms Merells quoted from a text on trauma edited by a well-known author in the field of post traumatic stress disorder research that "failure to integrate the trauma in the acute stage makes people vulnerable to the later development of PTSD". Ms Merrells explained in re-examination that what was meant by "failure to integrate" was failure to offer people the opportunity to talk about what happened and their response to it, to "normalise" it and to adopt strategies in that early stage when there is a high level of distress.

81 Under cross-examination Ms Merrells agreed that, in order for treatment to be effective, the patient had to be comfortable with the professional providing the treatment; understand the rationale for therapy; and that it was common in these circumstances for people to see their general practitioner.

82 Ms Merrells gave evidence that at the time of her first appointment, Mrs Griffiths suffered from post-traumatic stress disorder. No evidence was adduced as to whether Mrs Griffiths had suffered from acute stress disorder as a result of AK's assault. Not having seen Mrs Griffiths until October, Ms Merrells could not diagnose Mrs Griffiths' condition in the first month following the assault by AK. However, Ms Merrells noted that the symptoms Mrs Griffiths described having experienced in that first month were consistent with acute stress disorder.

83 Ms Merrells gave evidence that patients were unlikely to seek treatment themselves, and in the context of employee assistance programs, supervisors usually recommended counselling. According to Ms Merrells, it was important that programs such as the Employee Assistance Programme be provided confidentially, away from the workplace, by a separate body, so that no element of compulsion was involved. Ms Merrells also agreed that, in a case such as Mrs Griffiths', when the patient had been certified as unfit for work, it was inappropriate for their employer to force them to undertake particular courses of treatment, particularly in the first acute period following a trauma.

84 Ms Merells conceded that Mrs Griffiths had seen her general practitioner, a psychologist from the EAP and a psychiatrist, but notwithstanding the regime of treatment thereby undertaken she still developed post-traumatic stress disorder. Even if a patient received appropriate counselling immediately following a traumatic incident, Ms Merrells advised that there was no guarantee that post-traumatic stress disorder could be prevented.

85 No evidence was adduced as to the proportion of patients with acute stress disorder who develop post-traumatic stress disorder; the proportion of patients with post-traumatic stress disorder who did not initially suffer acute stress disorder; the likelihood of developing post-traumatic stress disorder being reduced by psychological counselling in the first month following the traumatic experience; nor whether that likelihood was different depending upon whether the patient initially suffered from acute stress disorder.

Additional factual findings relating to particular charges Functional Assessment 86 According to Dr Stephenson, a significant number of children with severe intellectual disabilities are likely to exhibit some level of violent or aggressive behaviour. Dr Stephenson and Mr Terry both gave evidence about functional assessment, which they regarded as one of the most appropriate methods of managing and modifying violent, aggressive behaviour. It is clear from the evidence that functional assessment has significant limitations. Nonetheless, Dr Stephenson regarded functional assessment as the most useful tool to diminish violence, to some degree, in a proportion of those students exhibiting violence.

87 In essence, functional assessment involves collecting information about individual violent students, and using that information to attempt to discern the function the violence serves for the student, and the cause of it. The information is collected (depending upon available resources) from a combination of secondary materials (questionnaires and interviews with people who know the student) and direct observation, ideally by someone who is not distracted by other duties in a natural setting: in the case of Kurrumbee, at the school. Having collected and analysed information on the student's behaviour, one forms a hypothesis about the function of violence; if possible, tests the hypothesis in a contrived situation and then attempts to introduce or encourage the student to use alternative, socially acceptable behaviour, to serve the same function. The process inevitably takes some time, largely because it involves a search for triggers which might not be initially obvious. According to Dr Stephenson, the ultimate purpose of functional assessment is to plan the appropriate way of dealing with the student, by a combination of eliminating negative triggers and enhancing positive stimuli in order to keep the student calm and stable thereby facilitating his or her learning capacity.

88 Dr Stephenson gave evidence that functional assessment will be completely ineffective with approximately 30 - 40% of violent students. Dr Stephenson also noted that functional assessment will not work if the function of the behaviour cannot be removed or replaced. The regular occurrence of unpredictable violence was substantiated by the evidence of other witnesses: each teacher at Kurrumbee (with the exception of Mrs Sparrow) had seen or been exposed to the violence of a student, well known to them, which was completely unheralded. Indeed, Mr Terry gave evidence that the more severe the intellectual disability, the more difficult it was to predict violent behaviour.

89 Dr Stephenson did not have precise figures of the effect which could be reasonably expected in the remaining 60 - 70% of cases, but estimated a general reduction in violence and the elimination of violent or aggressive behaviour in perhaps half of the remainder, provided the triggers were continually excluded and positive stimuli was provided. However, Dr Stephenson conceded that a child, apparently happy in a behavioural pattern, could react in an unusual or different way, perhaps violently or aggressively. Further, it was not certain that, having identified the negative stimuli, the child would react in the same way to these stimuli each time. A child who had displayed withdrawal behaviour in response to a particular trigger might on occasion become aggressive. Accordingly, behavioural programs must be monitored and evaluated continually. Dr Stephenson also conceded that the violent, noisy or aggressive behaviour of co-students (all factors present at a school such as Kurrumbee) can trigger violence in aggressive students.

90 Dr Stephenson described the individual education plans which are developed for all students of special schools once the student has been at the school for a few weeks and the teachers have had the opportunity to observe the student's behaviour. The plan should contain information about violent or aggressive behaviour, what triggers it, how to avoid it, how to manage it, and what behaviour is being taught to replace the violent behaviour. While Dr Stephenson considered that functional assessment could be carried out usefully before enrolment in order to identify aggressive or violent behaviour, she agreed that some violent behaviour is specific to the situation: behaviour which does not occur at home may be triggered at school. This would have to be taken into account when carrying out such an assessment.

91 At the time of the assaults, according to Mr Terry, the defendant operated a staffing ratio of one teacher and one aide for every six severely intellectually disabled students. Mr Terry did not know whether this ratio took into account violent or aggressive behaviour. The defendant later commissioned an independent report (the Comino Report) to review specialist staffing formulas which, according to Mr Terry, recommended that the ratio be reduced to five to one. The photocopy of the report tendered in Court was not dated. At the time of the hearing in these proceedings, Mr Terry advised that the defendant was conducting trials based on the report's recommendations. It was impossible to predict the effect that implementation of the report would have on staff levels at Kurrumbee, because that depended upon a fresh classification of every enrolled student's level of disability.

92 Mr Terry gave evidence that in 1998 Kurrumbee sought additional resources from the defendant to deal with violent students. The school was granted 20 "teacher days", which they used to release Dr Stephenson from teaching duties to allow her to (a) determine which approach would work best in practice and (b) institute the approach she decided upon, namely functional assessment and functional analysis. During 1998, Dr Stephenson worked with nineteen violent students, including JB, focussing on ten in particular. In 1999 she ran courses for the other staff, after school, on how to conduct functional analysis and assessment and deal with violent behaviour.

93 Upon request, the defendant allocated Kurrumbee a further 20 "teacher days" for the following school year. Dr Stephenson asked to return to the classroom and the time granted was used to relieve staff to implement the programme instituted by Dr Stephenson.

94 In February 1999, Kurrumbee also applied to the defendant for "substitute care funding" in relation to seven specific children, including AK and JB, who needed additional support. Following an appeal, 30 hours of aide time were obtained for JB only.

95 Mr Terry gave evidence that in 2000 the school applied unsuccessfully to the defendant's district office for assistance to manage violent students because, despite continuing to run the functional assessment/analysis course after school, Kurrumbee had not been able to modify much of the violent behaviour. According to Mr Terry, Kurrumbee needed additional, properly trained staff and the flexibility to use that resource appropriately, for example, to grant staff short breaks of 15 - 30 minutes from difficult or stressful situations.

96 Dr Stephenson gave evidence in her affidavit that she did not consider that there was any problem in leaving a teachers' aide alone with students, as such. However, she considered that a person should only be left alone in a classroom with potentially difficult students if that person had experience and training to deal with such students and their difficult behaviour. To elaborate, Dr Stephenson stated that such experience or training should include knowledge that for some students it was important to retreat, whereas for others it was important to react firmly; knowledge of general principles (such as providing interesting activities and giving the children some opportunity for choice or control where that was acceptable for adults); and training in self-protection in the event of violence. Dr Stephenson also considered that there should be some basic plan of crisis management to isolate a violent student. In oral evidence in chief Dr Stephenson's requirements, unchallenged in cross-examination, became more stringent: she considered that in the case of someone like AK, a person should not be left alone with him unless they had specific knowledge of how to avoid triggering his aggressive behaviour.

97 When asked if the circumstances of 9 February (noise, rain, change in routine, absence of usual teacher, aggressive behaviour by other students), created an atmosphere in which an unspecified severely intellectually disabled child might exhibit violent or aggressive behaviour, Dr Stephenson agreed that "some students would certainly react to that kind of situation". Dr Stephenson also agreed that in a situation where one teachers' aide was left supervising nine children, two of whom were known to be violent (and were, in fact, being violent) and one of whom was vulnerable in a wheelchair, the first priority would be to move the vulnerable child to a point of safety, and that it would be very difficult to bring the two violent children under control. Although Dr Stephenson stated that it would be even more difficult without a behaviour intervention plan in place, she agreed that even with one in place it would be difficult. Further cross-examination established Dr Stephenson's opinion that it was very difficult to direct a violent child exhibiting aggressive behaviour back to normal behaviour unless they are dealt with on an individual basis, fairly intensively, something which was not possible for Mrs Griffiths to do that day.

98 Mrs Griffiths' classroom was not fitted with any duress alarm system, nor was she equipped with a personal alarm or mobile telephone. The school had four mobile telephones, but these were used for excursions and not usually used on school premises. The only method of summonsing help from the classroom on 9 February 1999 was to use the fixed telephone line, which required lifting the handset and pressing the relevant two-digit extension number. This would immediately identify to the switch where the call was coming from (provided that the destination number was not engaged). However, it would be necessary to identify the call as an emergency call.

99 There were two alarms at Kurrambee, both fixed to walls of the shower block and activated by pushing a large red button. This did not emit a noise, but activated a signal at the base station to identify that one of the two alarms had been activated, without identifying which alarm (and therefore which location). Someone was then required to respond to the alarm system at the base station and then go to the shower block to investigate.

100 Mr McKenzie gave evidence that Kurrumbee had conducted a trial of duress alarms some years before the assaults, motivated by the attendance of a particularly violent student at the time. The school found that personal alarms which emitted a loud noise were unsatisfactory because they could not be heard over a sufficient distance to alert other staff members to respond.

101 The prosecutor called a probation officer, Mr Peter White, to give evidence that at the time of the assaults personal duress alarms existed. The alarms could be worn around the neck or in a pocket, and were activated by pressing a button, whereupon they emitted a loud noise. Mr White had seen other personal alarms with the facility to activate a blue flashing light in a separate room or to activate a signal in a separate building, such as a nearby police station. It was not clear from the evidence whether these alarms were fixed or mobile, or whether they would identify their location. The range over which these devices worked was not given, the witness having only seen them operate over short distances within the same building, when potential rescuers knew in advance the precise location of the person activating the alarm.

102 According to Mrs Griffiths' affidavit, if she had had a personal duress alarm, she would have activated it as soon as Ms Crompton left the room, due to her isolation and the aggressive, disruptive behaviour of a number of students.

103 The prosecutor alleged in Matter No. IRC609 of 2001 that the defendant failed to provide any adequate (or indeed any) information or instruction in relation to AK. The evidence relating to the first two particulars of this charge (inadequate information concerning behavioural problems or management strategies and failing to follow the enrolment procedure) has been discussed earlier in the judgment. However, the charge in Matter No. IRC609 of 2001 includes a third particular in relation to the risk of violence from AK: that the defendant failed to instruct that only male teachers aides special were to be employed in AK's class and females were not to be employed.

104 Mrs Sparrow was the only witness to attest that students, including AK, responded to and respected male staff more than female staff. In fact this was contradicted by Mr McKenzie. Further, several witnesses, Dr Stephenson included, gave evidence that it was important for disturbed children and adolescents to be taught by both men and women and to learn to relate to adults of both sexes. This may be particularly important for aggressive adolescent boys. Mrs Sparrow herself gave evidence of Dr Stephenson intervening during one of AK's violent tantrums and calming him down. There was nothing in the evidence to suggest that Dr Stephenson was any less adept at this task than her male colleagues, but her specialist skills should be noted.

105 More importantly, nothing in Mr Petrie's detailed report on AK's violence distinguishes between men and women supervisors. The most critical attribute, according to that report, was to know AK well. To put this requirement in context, Mr Petrie gave evidence under cross-examination that he had known AK for seven months, "had had a fair bit to do with him over that time" and yet was still regarded as "an outsider" by AK. Of course, on 9 February 1999 not only was AK adjusting to a new home and school, he was also being supervised by people who were not well known to him. Mrs Griffiths gave evidence that AK's behaviour was more reasonable in the presence of his teacher, Mr Hamilton, than it was in the presence of the relief teacher, Mrs Sparrow, but there was nothing to suggest, on the evidence, that this was due to gender rather than degree of familiarity.

106 Mrs Sparrow gave the following affidavit evidence in relation to resource management at Kurrumbee following the assaults: Support at school level included: other staff were rostered to replace one classroom staff member during break times, so two staff were present when at least one of them was female; the presence of male staff in the classroom, including the Principal, when [AK] had displayed challenging behaviours; [AK] being removed from the classroom by his class teacher following disruptive behaviour and the employment of a male teacher aide in the term following Mrs Griffiths absence as a result of the injury she had received.

The above mentioned strategies, but always involving the presence of male staff with [AK], reduced the number of times he was disruptive, hastened the time for the disruptions to be contained, and most importantly, decreased the incidents of attacks on staff and students. However, in my opinion, the strategies have been implemented at a cost of inconvenience and stretching of staff resources across the school.

107 Again, without more detailed evidence (including evidence from AK's teacher himself) it would be difficult to ascertain the extent to which any reduction in AK's violence, as described above, was due to increasing familiarity with his class teacher (who happened to be a man) or, simply, a higher staff to student ratio in the absence of the unusual circumstances of a strike. It seems that one or the other had some effect in reducing his violent behaviour. 108 In a letter dated 20 May 1999 to Mr Robert Manwarring, the superintendent, Penrith District Office, Mr Terry referred to regional databases within the defendant containing catalogues of students with severe behavioural problems demonstrated by violence or frequent and serious threats of violence. There was no further evidence on the subject, either in relation to how students are placed on the database or the consequences of such an inclusion.

109 The evidence established that two basic forms of relevant training had been offered to the staff of Kurrumbee: courses relating to self-defence and courses relating to the prediction and behavioural management of aggressive or violent behaviour (such as Dr Stephenson's after school classes in functional assessment). In addition, Mr Terry gave evidence that Kurrumbee's training and development budget was limited: according to him, $25 per staff member per year did not go far when one considered the cost per day of a replacement casual teacher (up to $275) or aide (up to $127). Mr Terry stated, in the context of this budget, that the defendant expected Schools for Specific Purposes to arrange their own training.

110 According to Mr Terry's "briefing notes", Kurrambee ran three passive self-defence courses for staff in 1995, 1996 and 1997. Mr Terry regarded the first as rudimentary, but considered the latter two to have been valuable. However, he noted that staff were required to practise frequently in order to learn to respond automatically. As mentioned earlier in the judgment, Mr McKenzie gave evidence that a high proportion of staff attended the self-defence courses, which consisted of four one or two-hour sessions, where they were taught and practised how to defend themselves if attacked from behind, or if they were hit or kicked.

111 Mrs Griffiths gave the following evidence by affidavit in relation to self-defence training: A number of years before the assaults I attended a passive self-defence course organised by the School. To the best of my recollection, I attended one two-hour session. During the session we learnt how to defend ourselves against aggressive students without inflicting any injury on the student. I did not think the course was satisfactory as it dealt with defending oneself against predictable behaviour focused on general self-defence. It was not directed specifically at managing aggressive students who I dealt with on a daily basis.

112 There was no evidence that teachers' aides special were given any training in modifying or predicting aggressive behaviour or in "communication skills" (the phrase used in the charge) before the assaults; indeed, Dr Stephenson stated in her affidavit that she was unaware of aides receiving any general training about different behaviours they encountered and how to deal with them. This was supported by Mr Terry's evidence that in his view teachers' aides special were not given any training on how to cope with aggressive behaviour.

113 Mrs Griffiths, the only aide to give evidence, stated that she attended a course entitled "Working as a Teachers Aide Special In Service Course" in 1994, and had previously attended a number of evening courses for teachers and teachers aides on teaching and assisting physically disabled children. The course, in 1994, focussed on feeding, lifting and positioning and, although it contained a session on communication skills, it did not deal with communicating with aggressive children. None of these courses dealt specifically with violent, aggressive children or how to manage them.

114 Mr Terry described a course in communication run by the Principal of the Autistic Association School which he regarded as very informative and a course for principals in 1996 presenting communication as the means to combat violent behaviour which Mr Terry did not rate so highly, disagreeing with the course premise that all violence or aggression is due to poor communication strategies.

115 As mentioned earlier in the judgment, Kurrumbee conducted a detailed and highly tailored programme of functional assessment instituted by Dr Stephenson, but this did not commence until late 1999, after the assaults. Following this experience, Mr Terry and other staff members found that it was difficult for external, more general courses, to improve upon the training they received from Dr Stephenson. For example, Mr Terry gave evidence that although the defendant offered a two-day course dealing with violent behaviour, he did not arrange the course for Kurrumbee because feedback from schools which had participated did not convince him that it would represent value for money. Similarly, Mr Terry stated that a Kurrumbee teacher attended a two-day course run by the defendant on functional analysis and communication but considered that the training provided within the school was more valuable. Further, according to Mr Terry, the defendant arranged a TAFE course for teachers aides special in 2001 but aides from Kurrumbee who attended the course told Mr Terry that it was considerably inferior to the training they received at the school.

116 By consent, written submissions were exchanged before the parties addressed the Court in closing argument and supplementary submissions were then filed.

Submissions for the Prosecutor 117 The prosecutor prepared lengthy submissions and submissions in reply on the nature of continuing offences and the appropriate characterisation of offences under s15 of the Act without explaining the relevance of the distinction in this context, a relevance which, as the defendant noted, is by no means clear. I agree with the defendant's submission that such a characterisation provides no utility in this case.

118 In summary, the prosecutor made the following submissions: 1. The duty created by s15 is to prevent risks to health or safety, not to prevent injury, an important consideration when examining the actual incident which caused injury.

It is necessary to establish a failure by the defendant in terms of the particulars as charged, and then a causal relationship between that failure and the consequent risk to safety.

The prosecutor is not required to demonstrate particular measures which should have been taken to prevent the risk, but there will be no offence if the risk was impossible to anticipate.

The evidence clearly established the existence of the risk identified in the five charges (of employees being assaulted by students demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm) and the fact that the risk was well known to the defendant. This risk materialised when AK assaulted Mrs Griffiths on 9 February 1999 and when JB assaulted Mrs Griffiths on 8 March 1999.

The correct approach to risk of unpredictable, violent conduct was followed by Hungerford J in a "no case to answer" determination in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State Police of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268. That case concerned the fatal shooting of two police officers responding to a domestic violence call. His Honour rejected the defendant's submission that there could be no liability because the relevant risk was not created by the defendant, but by the unpredictable and criminal conduct of an individual over which the defendant had no control. Rather, his Honour held the risks faced by the officers on operational duty were well known to the defendant, even though the specific risk of the individual gunman may not have been known, and the defendant was therefore responsible under s15 for its failures to ensure against those risks.

In this case, the Court should reject the defendant's submission that there could be no offence because the relevant risk could not be prevented entirely. No safety measure can eliminate a risk with absolute certainty. Acceptance of the defendant's submission would require a manifestly absurd interpretation of the Act and would be inconsistent with decided cases, including the Police Service No 2 . The Court should also reject the defendant's submission that failure to take remedial steps after a risk has arisen cannot give rise to a breach of the Act: otherwise, for example, there would be no obligation for an employer to clean up spilt oil.

Prosecutor's Submissions as to Particular Charges 119 In relation to the particulars of each charge, the prosecutor made the following submissions:

Matter No. IRC 609 of 2001: inadequate information and instruction

(i) The defendant allowed AK to attend school without adequate information concerning behavioural problems or details of strategies to manage or control his behaviour. Further, the defendant failed to follow its enrolment procedure for AK. Consequentially there was no Appraisal Report or Access Request Form on AK's file and Mr Terry was not able to carry out an assessment of student needs before AK's enrolment.

(ii) Mr Petrie's report was written and provided to the Department of Community Services before AK enrolled at Kurrumbee. It contained valuable information about AK's propensity for violence. Although Mr Terry and Mrs Griffiths were aware before 9 February 1999 that AK had displayed aggression or violence, the prosecution submitted that AK had not previously displayed behaviour of that magnitude or type. Mrs Griffiths gave evidence that if she had been aware of Mr Petrie's report on 9 February 1999, she would have called for assistance before Ms Crompton left the classroom.

(iii) The prosecution submitted that according to Dr Stephenson's evidence, functional assessment may comprise indirect assessment, involving two to three hours of interviews or questionnaires; it was only if this did not produce clear-cut results that one might continue with other forms of assessment. This preliminary functional assessment of AK was clearly possible in the time available, should have taken place and would have "identified the intensity of his aggression and violence and permitted steps to be put in place".

(iv) The requisite causal relationship had been established in relation to this particular: if an indirect functional assessment of AK had been conducted, or if the enrolment procedure had been followed, the risk would have been discovered and remedial action could have been taken.

(v) As to the third particular of this charge, by failing to instruct that only male teachers' aides were to be employed in AK's class, and that females were not to be employed, "there was a possible risk to safety, health and welfare which existed in the workplace". The prosecution submitted that this was supported by Mrs Sparrow's evidence that the defendant's practice after the assault of excluding female staff from AK's classroom reduced the frequency and length of violent outbursts.

(vi) Although questioned by the Court during oral submissions on the extent to which subsequent actions by a defendant could be taken into account in relation to the finding of an offence, rather than in relation to practicability under s53(a) or sentencing, the prosecutor's submissions in reply focussed on the relevance to a defence under s53(a) and did not really address the issue.

Matter No. IRC 611 of 2001: inadequate training (i) The prosecutor submitted that the defendant had failed to implement a "basic precaution" in that "Mrs Griffiths had not received relevant up-to-date training" and cited the following evidence in support:

· Dr Stephenson's evidence that self defence training was important; · Mrs Griffiths had attended a course but did not regard it as adequate because it "dealt with defending oneself against predictable behaviour [of aggressive students] focused on general self-defence. It was not directed specifically at managing aggressive students who I dealt with on a daily basis"; · Kurrumbee's training budget was limited, the defendant expecting SSPs to arrange their own training; and · Kurrumbee's advanced resources in relation to functional assessment (particularly Dr Stephenson's work with the students and training other staff) meant that courses offered by the defendant on functional assessment or communication rarely represented value for money. (ii) The prosecutor further submitted that, given Dr Stephenson's evidence that training in functional communication skills will "go some way towards reducing challenging behaviour", there was no justification in the State "failing to provide this type of training, where it was a desirable layer of safety to protect the State's employees". The prosecutor did not mention Dr Stephenson's classes for staff on functional assessment conducted at Kurrumbee in 1998, nor the 20 teacher days allocated in 1999 and used by the school to further the programme instituted by Dr Stephenson.

Matter No. IRC 608 of 2001: failure to install adequate emergency equipment (i) If there had been a proper emergency system in place, Mrs Griffiths would not have had to turn her back to protect NK in the wheelchair while calling for assistance and thereby expose herself to assaults by AK. (ii) It was not for the prosecution to prove the exact telecommunications system which should have been in place. It was not disputed that the clerical office was occupied between the hours of 8:30am and 4pm and Mrs Griffiths gave evidence that "she thought that you could have some form of personal duress alarm which, upon the pressing of a button, lit up something in the principal's office".

Matter No. IRC607 of 2001: failure to provide adequate human resources (i) In written submissions, the prosecutor limited the first particular of this charge, "allowing the number of teachers and/or teachers aides special to comprise the available human resources", to days other than 9 February 1999 and submitted that the particular had the following three bases: (a) inadequate resource to conduct functional assessments or to review Individualised Education Programmes; (b) inadequate "substitute care support" in respect of individual violent students and (c) an inadequate staff to student ratio generally. The prosecution did not suggest specifically how these alleged failures were causally connected to the risk specified in the charge. (ii) The prosecutor specified in written submissions that the second particular of the charge, "failing to provide additional human resources", was limited to an allegation that on 9 February 1999 Mrs Griffiths should not have been left alone and contended that there existed a causal connection between the alleged failure and the specified risk.

Matter No. IRC 610 of 2001: failure to provide assistance/counselling (i) The prosecution submitted that assistance and counselling should have been but was not provided to Mrs Griffiths on 9 February 1999 and during the first week of March when she returned to work. The duty under s15(1) was remedial and preventative and the defendant was required to provide layers of safety. The defendant failed to attend to Mrs Griffiths' potential to develop acute stress disorder or post traumatic stress disorder. In oral submissions, the prosecutor expanded that because an offence under s15 was a continuing offence, the defendant's obligation (which had been breached) went further: once the risk manifested itself at work, the defendant remained under an obligation to ensure health and safety by providing counselling, even when Mrs Griffiths was no longer at work. (ii) The prosecutor further submitted that the defendant failed in allowing Mrs Griffiths to return to work in March without providing any, or any adequate, employee assistance or counselling. (iii) Again, in written submissions, the prosecutor did not attempt to establish any causal link between the alleged failure in this charge and the identified risk.

Defences 120 As to the availability of defences under s53, the prosecutor submitted that both full day strikes by the Teachers Federation and rainy days were not unknown to the defendant: the State could be required to take appropriate steps in respect of these things.

121 In his written submissions in reply, the prosecutor submitted that defences under either limb of s53 must fail because: (a) the detriment turned on remedial or preventative measures which were open and available to the defendant; (b) the defendant took no such action; and (c) it would have been practicable to take the various measures or steps.

122 In particular, the prosecutor submitted that the issue of a defence under s53 did not arise in relation to Matter No. IRC 609 of 2001 (inadequate information) because of concessions made by the defendant in oral submissions.

Jones v Dunkel 123 Finally, the prosecutor invited the Court to draw an inference that evidence which may have been elicited from Mr Robert Manwarring or from Ms Julie Edwards would not have assisted the defendant: Jones v Dunkel (1959) 101 CLR 298.

124 The defendant made the following written and oral submissions on the substance of the charges:

There was no evidence that either Ms Muggleton or Ms Crompton was an employee of the defendant and, to the extent that any of the charges relied upon risks said to have arisen in relation to them, the prosecution must fail.

Section 15 requires employers to act pro-actively, to ensure or make certain that the risk does not arise. The risk specified in the charges and identified by the evidence is the random aggressive or violent act of a severely disabled child. On all the evidence, such acts cannot be predicted with any certainty, cannot be eliminated and cannot even be definitely reduced in certain circumstances. Further, the charges allege failure to take remedial steps after that risk has arisen and therefore cannot give rise to a breach of the Act. The Act requires that the specified risk does not arise and it is at that point that the obligation is created. If the risk has already arisen, subsequent acts or omissions are irrelevant to liability under s15.

During the course of oral submissions, however, the defendant clarified that, as an alternative to its submission that acts or omissions, once the risk has arisen, cannot give rise to liability, it submitted that, in order to succeed in this case, the prosecutor must establish that the step which was required to have been taken by the defendant would have eliminated the entire risk.

The evidence disclosed, it was submitted, that children suffering from intellectual disabilities displayed violent or aggressive behaviour in a number of different circumstances and such behaviour was not necessarily attributable to any particular factor. In particular, the second assault by JB on 8 March 1999, relied upon by the prosecutor, was a powerful illustration: there was no act or omission on the part of the defendant which could be said to have caused or failed to remove the risk on that occasion.

For the prosecutor to succeed, the alleged act or omission "must cause the detriment to safety (the risk) of the person concerned": WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust.) Pty Ltd (No 1) (1999) 101 IR 239 at 253. The prosecutor had failed to demonstrate, to the criminal standard, the necessary causal nexus between acts or omissions of the defendant and manifestation of the risk; indeed, on the evidence, there was no need for an act or omission on the part of anybody to give rise to the relevant behaviour.

The prosecutor submitted that it was not required to establish what should have been done and, although the defendant did not contradict this submission, it did state in oral submissions that it was very difficult for the prosecution to prove, to the requisite criminal standard, that the relevant causative factor was an omission on the part of the defendant without identifying to some extent what should have been done or suggesting an alternative.

Defendant's Submissions as to Particular Charges 125 In relation to the particulars of each charge, the defendant made the following submissions: 1. Matter No. IRC 607 of 2001 - Human Resources (i) In written submissions, the prosecutor specifically excluded the day of the strike from the first particular of this charge: "allowing the number of teachers and/or teachers' aides special to comprise the available human resources". Instead, the prosecutor asserted that this particular alleged inadequate resources to perform functional analysis and "individualised education programs" and inadequate resources generally. The defendant submitted that there was no evidence to support the proposition that functional assessment would "guarantee or make certain" that a risk of aggressive or violent behaviour would not arise in some students. (ii) The prosecution did not lead any evidence to establish insufficient staff at Kurrumbee other than for 9 February 1999. Further, none of the evidence supported a finding that providing extra teachers or teachers' aides would eliminate the risk of violent or aggressive behaviour. The evidence indicated different views as to the appropriate general level of staff in a school for disabled children, but even if there was a view that the level should be greater, that did not establish to the criminal standard that the staffing at Kurrumbee was insufficient and there was no evidence that any level of staffing on 9 February would have ensured the absence of violent acts. (iii) As to the second particular of this charge, "failing to provide additional human resources", in written submissions the prosecutor limited this particular to the day of the strike. The defendant submitted that there was no evidence to suggest that additional teachers or aides in Mrs Griffiths' room on 9 February 1999 would have prevented the risk of aggressive or violent behaviour from having arisen; Mrs Griffiths' evidence showed that the events which exhibited the risk commenced at a time when Mrs Crompton was present in the combined classroom. 2. Matter No. IRC 608 of 2001 - emergency equipment (i) The charges in relation to failure to provide duress alarms were flawed: such alarms only operate in circumstances once the risk of violent or aggressive behaviour had already arisen. The assaults of 9 February 1999, relied upon by the prosecutor, were the result of the risk having arisen: in written submissions the prosecutor conceded that a mobile telephone or duress alarm would have been activated after Mrs Griffiths first became concerned for her safety. According to the defendant, there was no way that such alarms could prevent the risk arising. Further, the prosecutor did not suggest how the provision of a personal duress alarm could have any relevance to the events of 8 March 1999. (ii) In any event, there was no evidence that, on the day of the strike, the activation of a mobile telephone or personal duress alarm would have prevented Mrs Griffiths from being exposed to injury, or indeed, would have made a difference. 3. Matter No. IRC 609 of 2001 - inadequate information in relation to AK (i) It was submitted the evidence did not support the conclusion that the provision of information would have guaranteed that AK would not engage in random aggressive or violent acts. (ii) Further, the prosecution had ignored the evidence that behavioural information is not static and must be made relevant to the particular physical circumstances: in this case, the Kurrumbee School environment. There was no proper opportunity between enrolment and 9 February 1999 to carry out the type of assessment considered appropriate by Dr Stephenson. (iii) There was no allegation of inadequate information in relation to SH and JB, both well known to Mrs Griffiths, and yet both of these students exhibited challenging (and in the case of SH, violent) behaviour on 9 February 1999 before AK did. (iv) Although the prosecution relied heavily upon Mr Petrie's report on AK, the plan did not purport to be a behavioural plan relevant to the school environment and the triggers referred to in that report were not evident on 9 February 1999. It could not be maintained that the information of the type in Mr Petrie's report would do other than identify a particular student's capability and Mrs Griffiths was already aware that AK was capable of, and had exhibited, violent behaviour. (v) There was no evidence to support the assertion made by the prosecution that AK should only be supervised by males. In fact, there was nothing to indicate that a man in Mrs Griffiths' stead on 9 February 1999 would not have been exposed to a risk of aggressive or violent behaviour from AK or other students. Further, the particular as pleaded, if followed by the defendant, may lead to a charge of discrimination under the Anti-Discrimination Act 1977. To the extent that the Act required any such action on the part of the defendant (which was denied) there may be a conflict between the two Acts. 4. Matter No. IRC 610 of 2001 - inadequate counselling (i) This charge must fail on the basis that there was no allegation that Mrs Griffiths was denied counselling "at work" and, therefore, a fundamental element of a charge under s15 of the Act had not been made out. There was no suggestion that the defendant should have done something in relation to counselling or assistance on 9 February 1999 or for the period Mrs Griffiths was at work in March and, therefore, no finding against the defendant to the criminal standard could be made. (ii) In the alternative, there was no evidentiary basis for the assertion that the defendant required Mrs Griffiths to return to work in March 1999; on the contrary, Mrs Griffiths determined herself that she was able to return to work, at the time making no complaint to the defendant that she required any assistance in so doing. (iii) In oral submissions, the defendant elaborated that the prosecution could not show that any failure by the defendant to provide counselling was a causative factor. 5. Matter No. IRC 611 of 2001 - inadequate training (i) The prosecution alleged that between 9 February 1999 and 8 March 1999 the defendant did not provide Mrs Griffiths with any adequate training in the nature of "self-protection" or "communication strategies". Provision of training in that period could not be relevant where Mrs Griffiths was away from work from 9 February 1999 to 1 March 1999. (ii) In any event, self-protection courses could only be relevant as a reaction to the type of risk specified in the charges, not as a preventative measure. Further, there was no suggestion that "communication strategies" played any role in relation to JB's assault on 8 March 1999. (iii) The prosecution's assertion that functional skills would "go some way towards reducing challenging behaviour" identifies the weakness in the prosecutor's case: such skills would not eliminate the asserted risk.

126 It was contended that if the Court found that an offence had been committed under s15 of the Act, then the defendant could establish a defence under both s53(a) and (b).

127 The evidence established the importance of stability and routine in order to provide the best possibility of acceptable behaviour from children with severe intellectual disabilities. On 9 February 1999, unusual circumstances beyond the control of the defendant arose: the combination of rain and the teachers' strike meant that a significant number of personnel were absent and that the students could not pursue their normal routine of playing outside in the playground before class. Further, according to Dr Stephenson, noisy and boisterous behaviour by some students may trigger other students to become violent or aggressive.

128 It was not reasonably practicable for the defendant to engage non-strike labour on 9 February 1999 and, in any event, there was no evidence to suggest that additional personnel (such personnel being unknown to children such as AK, SH and JB) would have had any positive effect on the circumstances as they developed that morning.

129 The Court should infer from the evidence that the factors which caused the children involved in the incident on 9 February 1999 unexpectedly to act in violent and aggressive ways were not necessarily identifiable. Consequently the relevant detriment to safety was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provision.

130 In oral submissions, the defendant conceded that in relation to Matter No. IRC 609 of 2001, it did not contend that it was impracticable or beyond its control to provide information of a kind described in the charge.

Jones v Dunkel 131 If the prosecutor's submission was based upon an assessment that Mr Manwarring and Ms Edwards had relevant evidence then the prosecutor had a positive duty to adduce that evidence in his case. The defendant noted the prosecutor's unexplained failure to call other people mentioned in the evidence, such as Mr Hamilton, Ms Crompton and Ms Muggleton.

132 The defendant submitted that the charges were misconceived because they allege failures on the part of the defendant once the risk had already arisen (the risk being the exhibition of aggressive and/or violent behaviour, demonstrated by SH before any assault took place) thereby negating any possible causal nexus; or, in the alternative, that the prosecutor was unable to demonstrate that a step required to have been taken by the defendant would have eliminated the entire risk. Both submissions require analysis of the nature and meaning of risk in the context of the established case law. Such an analysis will also assist determination of the parties' competing submissions concerning a separate but related issue: causation.

133 The first submission also calls into question the nature of an employer's obligation under s15 of the Act and can be dealt with briefly. It may be uncontroversial, or even trite, to say that the obligation is constant at all places and times where work is performed. However, this observation is inconsistent with the defendant's submission, which implies that the obligation to ensure against risk is extinguished by an earlier manifestation of that risk. Juxtaposition of the two proposals reveals that the defendant's submission is fundamentally misconceived and would, if accepted, render the primary purpose of the Act (to ensure health and safety) nugatory. This conclusion is entirely consistent, in my view, with the decision of the Full Court of the Industrial Court of New South Wales in Haynes and anor v CI & D Manufacturing Pty Ltd (1994) 60 IR 149. The Court held that ss15 and 16 of the Act comprehended the commission of an offence where the relevant detriment to safety was a situation of potential danger to the health and safety of persons at work and that Div 1 of Pt 3 of the Act (incorporating ss15 and 16) cast general duties and obligations on employers which were "both preventative and remedial in nature" so that those obligations arose "both before and after the occurrence of an actual accident" (at 157).

134 To illustrate the point in terms of the present case, the fact that Mrs Griffiths may have been assaulted initially by SH on 9 February 1999, does not absolve the defendant from its obligation to take steps to protect her from further assaults - from SH or any other student.

135 The nature of the relevant risk was considered in detail by Hungerford J in a similar context in a "no case to answer" determination in WorkCover v Police Service (No 2). Although the defendant submitted that that judgment was of limited utility, being an interlocutory determination, I find the defendant's arguments, in this respect, unconvincing. The determination of a "no case to answer" submission involves the assessment of whether there may be sufficient evidence to establish the case of the moving party. As such, it proceeds upon the basis of the manner in which the case could be established, or which legal principles must be satisfied in order to sustain a final determination. The same legal principles which fall for determination in a contested hearing represent the benchmark for the determination in a "no case to answer" submission and there is no reason to regard the latter principles with circumspection.

136 The legal issues raised by the two cases are similar. In this case (in addition to its temporal argument in relation to manifestation of risk), the defendant has argued that the violent acts of severely intellectually disabled students cannot be accurately predicted, cannot be completely eliminated and are due to unknown causes independent of the defendant. Accordingly, the defendant submitted, they cannot give rise to liability under s15 of the Act. In WorkCover v Police Service (No 2) the defendant put similar arguments based upon the unpredictability and uncontrollability of a violent, armed member of the public. The similarity of arguments and issues between the two cases (and consequently the relevance of his Honour's reasoning, with which I agree) is best illustrated by the defendant's formulation of the tests to establish liability in WorkCover v Police Service (No 2) at [8]: · Would the act or omission alleged in each summons have ensured the health, safety and welfare at work of the officers? · Would the act or omission have provided plant or systems of work that were safe and without risks to health? · Did the acts or omissions alleged create a situation of potential danger to the health or safety of the officers? · What were the objective facts causing detriment to safety and was there a causal connection therewith of the employer? · Has the prosecution proved beyond reasonable doubt that the events were caused by the failure of the employer and not some other unrelated factor? (emphasis added)

and the prosecutor's response at [12]: (1) The relevant failure by the defendant the subject of the charge in each summons was not the risk created by Mr McGowan but the risk arising from its various failures in a situation where the two police officers were working in an environment where they were at risk of being shot or experiencing physical harm; the relevant risk, therefore, was that brought into existence by the defendant. (2) Whilst the defendant was not aware Mr McGowan posed the specific risk which occurred, the defendant was well aware of the type of risk which could arise for police officers engaged on operational duties; it was not a question of the defendant being responsible for the actions of Mr McGowan. The defendant should be held responsible for its acts or omissions in circumstances where the type of risk posed by Mr McGowan was well known to it. (3) To interpret s 15, as did the defendant, as not extending to any risks to employees arising from the unlawful actions of third parties would be a mandate for employers to ignore such risks and there was no basis in the legislation for such a narrow approach. That was especially the case with police officers whose main role was to deal with unlawful activity and, given the intention of the statute to improve the safety of the working environment, no such narrow view should be accepted. (4) The defendant's submission that the prosecutor must prove that the absence of the act or omission allegedly creating the risk to safety would have ensured the health and safety of the two officers misapprehended the statutory duty on the employer pursuant to s 15(1) - rather, the duty was to show that the act or omission amounted to a failure by the employer to ensure or provide for the safety of the two officers; the prosecutor must show an act or omission which detracted to the relevant degree from the obligation to ensure safety in the workplace.

137 Hungerford J considered Haynes v CI&D Manufacturing and the following passage from Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 (including the analysis in that case of Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467): We consider that this submission is misconceived. Firstly, the submission focuses on the foreseeability of the alleged risk to safety. The authorities cited above establish that in order to demonstrate a breach of s 15(1) the prosecutor is required to prove the existence of a failure on the part of the employer which is causally connected with the risk to safety. There can be no failure on the part of the employer in not taking steps to preclude a risk which was impossible to anticipate: see WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, Peterson J). However, the appellant goes further and submits that no breach of s 15(1) is committed where the employer does not know of the hazard and could not reasonably know about it.

The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1).

Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 138 Hungerford J then rejected the defendant's general submissions in avoidance of all the charges that the relevant risk was created externally from the defendant by unpredictable and criminal conduct over which the defendant had no control, preferring instead the prosecutor's stance. Due to the importance of his Honour's analysis in this aspect of his judgment I shall set out in full the relevant passages (at [22] - [24]) as follows: 22 The general submission made by Mr Hastings on which his no-case application was based as to all charges was that the relevant risk to safety here was Mr McGowan over whose unpredictable and unlawful conduct the defendant had no control; and, so senior counsel submitted, there was no causal nexus of the defendant to the detriment to safety of the two officers. In my view, that submission cannot be sustained. Mr Hastings went further and submitted that the significance of Mr McGowan's role was such that there was nothing the defendant could have done to obviate the risk caused by Mr McGowan; as senior counsel said - "There is nothing to provide the employees with safety in those circumstances". Even given, which I think clearly was the case, that Mr McGowan presented as a risk to the officers' safety, that is not what any of the charges were directed to. The charges identified what were alleged to be risks existing to the safety of the two officers apart from the ultimate actions of Mr McGowan in causing their deaths. The answer to Mr Hastings' submission in this respect is simply that it concentrated on the incident itself, that is the fatal shooting of the two officers by Mr McGowan, rather than the situation in which the officers were placed while performing operational duties at the time and place of the incident in terms of risks to their health and safety occasioned by the particular detriments identified in each of the charges. In other words, the defendant's submission fell into the same vice by concentrating on the incident itself as the Full Court in Haynes v C I & D Manufacturing found occurred there at first instance. 23 I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say, but as did Mr Hastings , that "the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of McGowan, with which there was no causal connection to the employer" and: "it is impossible to guarantee or to ensure the health and safety of police officers, and you can provide them with all the equipment under the sun short of an armoured vehicle and they will always be exposed to risk. Even if you did all the things that the prosecution has alleged were not done here ... those things had absolutely no bearing on the safety of Senior Constable Spears because he was simply surprised and ambushed before any of these factors had any capacity to come into play".

Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees, the legislature has created the absolute duty on employers in s 15, subject to the s 53 defence, to ensure the health, safety and welfare of those employees at their place of work. A corresponding duty on employers, I might add, has been created by s 16 of the Occupational Health and Safety Act to ensure the health and safety of persons other than employees at the employer's place of work. The point may be made by reference to the following observations made by me as to building sites in Kirkby v A & M I Hanson (55 IR at pp 49-50) : I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer". The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty. Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer."

It is my view that the nature of the duties, and hence the question of whether an employer has offended against s16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179 : "The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable" Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: "In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit."

That passage was applied by me in Boral Asphalt (98 IR at pp 252-253 in [18]-[19] and was cited with approval by Full Benches of the Court in Kennedy-Taylor (102 IR at p 67 in [33]) and in Mainbrace Constructions (102 IR at pp 97-98 in [60]). In light of the general submission so forcefully put by the defendant here, it is perhaps timely to repeat the following comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85 :

This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.

24 Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. In the same way, and notwithstanding the submissions of Mr Hastings to the contrary, comparable steps should be taken by employers in satisfying the statutory duty in respect of their employees liable to the effects of unlawful action by criminals, such as, as identified by Mr Hastings , those employees engaged in "service stations, pharmacies, shops, banks, cash delivery, cigarette trucks, buses and taxis". In identifying those occupations, Mr Hastings submitted as to them "there is a known history of violent and unlawful attacks by criminals, for which negligible precautions are provided by employers". Senior counsel added that in the emergency services (fire brigade, bush fire brigade and emergency services) the "employees are inevitably exposed to the risks of injury and death by the very nature of their duties" so that "employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken". There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety. The submission is no answer to the present charges. I reject it.

139 His Honour also emphasised (at [27]) my comments on causation in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 253 which are equally relevant here: "the alleged failure must cause the detriment to the safety (the risk) of the person concerned". Of course, this pronouncement on causation necessitates correct identification of the risk.

140 The distinction must be drawn between a risk, such as the violent behaviour of a member of the public or severely intellectually disabled student, occurring independently of the employer, the general nature of which may be known, and the risks which arise from the manner in which the employer exposes the employee to that risk. To put it another way, the employer fails to ensure the health, safety and welfare at work of its employees by failing to appropriately equip or protect them from risks inherent in their work (as opposed to risks which are merely speculative or unduly remote - see Drake at [145]), notwithstanding that such risks may be caused by external factors, known or unknown. As Hungerford J noted at paragraph 20 of WorkCover v Police Service (No 2), the duty imposed upon the employer is directed at obviating risks where the circumstances create a potential danger to the health and safety of employees at the workplace. It is upon this distinction between a specific risk (the particular actions of an individual in a given context on a given day) and a general class of risk that analysis must concentrate, for focussing too closely on the specific risk immediately preceding the incident under scrutiny can lead to the error so frequently warned against: concentrating on the incident itself. Appreciation of this distinction also makes it clear that the defendant's preliminary submissions are based upon the wrong risk: when attention is focussed upon the risks which arise from the manner in which the employer exposes the employee to the risks, the defendant's submissions in this case, as in WorkCover v Police Service (No 2), fall away.

141 Although it is implicit in the judgment of Hungerford J, and indeed in the forgoing analysis, I make it plain that I reject the defendant's submission in this case that the prosecutor must establish that the step required to have been taken by the defendant would have eliminated the entire risk. There is no justification for limiting the broad words of s15 of the Act in such a manner, particularly in the context of an Act which has the stated purpose of securing the health, safety and welfare of persons at work. To accept such a submission would virtually render s15 ineffective and belie almost every decided case, for what risk in an operating workplace can be eliminated entirely? Although it was only pleaded by the prosecution in the charge relating to counselling, the assault by JB on 8 March 1999 was frequently used by the defendant in support of this argument. However, the fact that the assault by JB on 8 March may not have been preventable, or may not have been caused by a failure on the part of the defendant, is no answer to the charge that other assaults, by other students, could have been prevented and were caused by failures on the part of the defendant.

142 I agree with Hungerford J's reasoning and analysis of the authorities and similarly reject the defendant's general submissions in this case. In both cases, the general nature of the risk to employees was known and predictable: here, the evidence clearly established the propensity for violence of a proportion of the severely intellectually disabled students at Kurrumbee and the regular occurrence of assaults against staff. In WorkCover v Police Service (No 2), it was well known that officers called out on operational duty may face violent or life-threatening behaviour. Accordingly, depending upon the evidence and the charges, the defendant in this case may be held liable for its acts or omissions in circumstances where its employees were exposed to the type of risk posed by AK, SH or JB which was well known to it.

143 It is necessary, then, to consider each of the charges and to assess, in view of the evidence, whether the defendant has failed in terms of the particulars alleged in the charges and, if so, whether there is a causal nexus between that failure and the consequent risk to safety of its employees.

The Charges Matter No. IRC 607 of 2001 - resources 144 The charge in this matter alleged that the defendant failed to provide adequate human resources between 9 February 1999 and 6 April 1999 to protect its employees from the risk of assault. In his submissions, the prosecutor (while pursuing both) clearly distinguished between the day of the Teachers' Federation strike and all other days in the so-called charge period. In view of the prosecutor's advice that he would not rely on any particulars relating to Ms Muggleton, the only assault particularised in the charge is that of Mrs Griffiths by AK on 9 February 1999.

145 In relation to days other than the day of the strike, the prosecutor submitted that the defendant failed to provide adequate resources to conduct functional assessments (particularly of AK) or to review "Individualised Education Programmes (IEPs)", and that it generally failed to provide "additional teacher and/or aide time" with the implication that such time would be used for a variety of purposes including one-to-one supervision of difficult students and the provision of short breaks for teachers and aides in stressful situations. As a general bolster to this aspect of the charge, the prosecutor submitted that the staff to student ratio at Kurrumbee had not changed since 1982, while the nature of the student population had become more demanding, indicating that the ratio was clearly inadequate.

146 There is insufficient evidence to support this aspect of the prosecutor's case beyond reasonable doubt, even before one gets to difficulties of causation. There was no evidence concerning IEPs at all, other than the fact that they were required and would normally be done once a student had been at the school for approximately three weeks, giving the staff time to observe behaviour. In particular, there was no evidence as to the number of students for which they had been created, and, if some were lacking, whether this was due to inadequate resource. Similarly, there was no evidence that the failure to conduct a functional assessment of AK before the assault was due to lack of resource, rather than, for example, the allowance of an adequate observation period. In fact, the evidence on the subject established that an additional 20 teacher days had been provided to Kurrumbee by the defendant purely for functional assessment in 1998 and 1999.

147 Similarly there was no evidence to establish, beyond reasonable doubt, that a change to the general staff ratio in operation at Kurrumbee (one teacher and one aide per six students) would decrease the risk of assaults on staff. Although there was evidence (notably that of Mr Terry) that the staff worked in a very demanding (perhaps even unrelenting) environment, the general staff ratio was never really examined in the context of risk from violent behaviour. A significant amount of time was devoted to analysis of the Comino Report, but the terms of reference for the report refer to a review in terms of staffing consistency across the subject schools and in terms of the educational needs of the students, and do not mention staffing ratios in the context of assaults or violent behaviour. Further, there was no evidence that the recommendations of the Report, if put into practice, would result in more staff at Kurrumbee, such a determination depending upon a revised classification of the students (which had not occurred by the time of the charge period).

148 It is to the second particular of this charge, "failing to provide additional human resources", limited by the prosecutor in submissions to the day of the strike, that attention must focus. The real culpability of the defendant, in the context of this charge, relates to Mrs Griffiths' position on 9 February 1999 once Mr McKenzie departed: one of two aides supervising ten students, each of whom was severely disabled, six of whom had severe behavioural disorders, three of whom were known to be violent (albeit that in the case of AK the extent may not have been known), one of whom was known to abscond regularly, and some others of whom were in wheelchairs. That position was simply untenable.

149 Mrs Griffiths herself knew it was untenable, and specifically requested the presence of a teacher: she advised Mr Terry that she did not want to remain in that divided classroom with another aide, on that day, without a teacher present. Mr Terry knew it was untenable: he agreed with Mrs Griffiths; directed Mr McKenzie to supervise the divided classroom; and immediately tried to remove JB from the equation. The evidence in relation to JB himself makes the unacceptable nature of the situation abundantly clear: it was well known that this student was likely to become violent or to abscond without notice and, in fact, he frequently required individual supervision. In the context of two other violent students, on a disrupted and therefore unsettling morning (making aggressive behaviour more likely on the evidence of Dr Stephenson), and vulnerable students in wheelchairs who would not be able to defend themselves, it was clear at the time that the situation had the very real potential (perhaps even likelihood) to overwhelm two aides, which is what in fact happened. In a situation where one aide may have to engage or retrieve JB (a situation known to be likely at any given time) it was clear that the remaining aide would be in the invidious position of having to protect both herself and vulnerable students from potential violence (again, a well known risk, rendered more probable on the day of the incident by the unsettling circumstances) from more than one source while supervising nine severely disabled students five of whom suffered from severe behavioural disorders. In fact, Dr Stephenson gave evidence that it would be very difficult for one person to manage two violent students, because calming them down requires a fairly intensive individual approach. Mrs Griffiths' evidence that at any one time (on a normal school day with a teacher present), there would always be one disruptive student in a class of six severely disabled students, is particularly telling.

150 The fact that Mrs Griffiths was placed in this situation of risk without any information in relation to AK's behaviour, nor how to manage it, merely exacerbates the defendant's failures and will be reviewed in greater detail under the relevant charge. AK was known to be violent: his behaviour in the first days of term had provoked Mrs Griffiths to discuss him with Mr Terry and to ask whether there was any available behavioural information on AK. Dr Stephenson gave clear evidence that no-one should be left alone with AK without specific information on how to avoid triggering his aggressive behaviour, otherwise they would risk being hurt. This evidence stands simply in relation to being left alone with AK, without the additional difficulties of extra students to supervise and vulnerable students to protect.

151 For the reasons described above, it is clear that the defendant's failure to provide additional human resources to assist Mrs Griffiths in that divided classroom with that complement of students on 9 February 1999 caused the detriment to her safety (the risk). No-one suggested in these proceedings that this was an acceptable situation; indeed, such a suggestion would be unsustainable in view of the evidence. The risk of her being left alone with nine (or even ten) students, should Mrs Crompton have to retrieve JB (or indeed leave the divided classroom with or without any other student for any other purpose which, on the evidence of Mr Terry, frequently occurred), was patent, as were the risks which would arise should she be left alone with the remaining students.

152 The defendant's submissions in relation to causation centre on the premise that there can be no liability unless the identified risk is capable of complete elimination. In relation to this charge, for example, the defendant submitted that it did not matter how many staff were present, it would not be possible to ensure the absence of violent or aggressive behaviour on the part of all students. I have already rejected this general submission in my earlier discussion of principles, and it only remains to observe that the defendant did not challenge causation under this charge on any other basis.

153 It is clear that the defendant's failure to ensure that Mrs Griffiths was not left alone in that divided classroom with those students caused her to be exposed to a risk of assault and I thereby find the offence proven, subject to any defence.

154 It remains to consider whether the defendant may avail itself of a defence under s53 of the Act. I think not. The defendant submitted that defences were available to it under subsections (a) and (b) of s53 of the Act on the basis that the rain and the strike, which were outside the control of the defendant, combined to destabilise the students and increase the risk of aggressive behaviour. The defendant's other submission in relation to a defence (that the precise cause of violent behaviour in a student is not known and is therefore outside the control of the defendant) has been dealt with at length in my discussion of general principles: to reiterate, the defendant is focussing on the wrong risk. As I have already extracted from the paragraph 24 of the judgment of Hungerford J in WorkCover v Police Service (No 2), although the defendant may not be able to "control" or otherwise affect the conduct of aggressive persons who confront employees from time to time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in the face of such a known and predictable class of risk.

155 The principles relating to defences under the Act were recently reviewed by the majority decision of the Full Bench of this Court in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 and paragraphs 38, 39 and 86 of my judgment in that case, reviewing the authorities, are particularly relevant here: 38 It is a simple but important point that a s53 defence does not arise for consideration in proceedings unless and until the prosecutor establishes to the requisite standard that an offence as charged has been made out: see ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997 at 7). See also Bultitude v Grice (at [77]) where it was stated:

The burden of proving the offence beyond reasonable doubt remains with the prosecution, but where provision is made for an exclusion or defence to such liability the defendant bears the burden, in an evidentiary sense, to adduce evidence capable of showing it is entitled to the benefit thereof.

39 Section 53 provides two bases for a defence: where it is established that it was not 'reasonably practicable' for the respondent to comply with its obligations under the statute (s53(a)) and where the offence was a matter over which the respondent had no control (s53(b)): see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 458 and State Rail v Dawson at 126 .

… 86 Regard should be had in this respect to the judgment in Kellogg (No.1) (adopted by the Full Bench of the Court in Kennedy-Taylor v WorkCover Authority (at 82), Genner Constructions (at [67] - [68]) and Bultitude v Grice (at [68])):

To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case.

It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight.

This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have.

156 Although I agree that it would be impracticable to require the defendant to obtain additional staff at short notice in the event of a teachers' strike in order to maintain staffing ratios, the prosecutor's submissions on this particular of the charge make it clear that the allegation relates to the resource provided to assist Mrs Griffiths in relation to the students under her supervision that day. There were many options which were available to the defendant (in terms of reorganising resource or otherwise) which would have reduced or eliminated the risk of assault, ranging from ensuring that Mr McKenzie did not leave his post as responsible teacher in that divided classroom; allocating an additional staff member (perhaps Mr McKenzie) to supervise JB individually until he could be collected by his carers; placing students with a known propensity for violence in a separate area without vulnerable students with a higher concentration of staff; restricting access to students with a known propensity for violence and thus changing the resource ratio from the other side; to closing the school entirely, in view of the limited resource and intractable demands for supervision in a school such as Kurrumbee. It is not the function of the Court to determine the precise measures which should have been taken (see WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 1) (1999) 91 IR 119 at 126), but all of these measures were practicable and within the defendant's control on the day of the strike. The defendant did not suggest otherwise. The fact that the weather and the strike were outside the control of the defendant does not absolve it from taking measures which were within its control and which would have reduced the risk. In fact, the knowledge of those two exacerbating factors placed it under a greater obligation to protect against known risks which were consequentially greater.

157 Accordingly, I find the offence in Matter No. IRC607 of 2001, having regard to the particulars in paragraph 6(b) and noting that the prosecutor, in oral submissions, limited that particular to the day of the strike, proven.

158 The charge in this matter alleged that the defendant failed to provide adequate information and instruction in relation to AK between 9 February 1999 and 6 April 1999 to protect its employees from the risk of assault. The following three failures on the part of the defendant are particularised in the charge: (a) the fact that it allowed AK to attend Kurrumbee without providing any information concerning his behavioural problems or details of strategies to manage or control him; (b) its failure to follow its own enrolment procedure; and (c) its failure to direct that only male aides should work in AK's class. As with the charge in matter number 607, the prosecutor's advice that he would not rely on any particulars relating to Ms Muggleton leaves the assault of Mrs Griffiths by AK on 9 February 1999 as the only one particularised in the charge.

159 The evidence clearly established the factual elements of each alleged failure beyond reasonable doubt. When AK attended Kurrumbee, the only information provided to the school (and therefore its staff) was the fact that he had come from the Hall for Children (an institution for youths with severe behavioural problems); verbal advice from the defendant's district office that AK had a history of violence; and the notation on the enrolment form by AK's mother "behaviour problems, runs away McDonalds". Before AK commenced at Kurrumbee, another of the defendant's departments possessed a valuable, detailed report (Mr Petrie's report) on AK's propensity for violence and risk minimisation strategies, commissioned specifically for the purpose of promoting the safety of people who came into contact with AK. The evidence also established that, had the enrolment procedure been followed, this report would probably have been provided to the school; at the very least, the enrolment procedure would have established a formal channel of communication between AK's carers and the school. Certainly, the defendant did not submit that it should be absolved from responsibility for failing to have provided the report to the school. Finally, there was no evidence of any direction that only male aides should work in AK's class.

160 In addition to submitting that Mr Petrie's report should have been made available to the school, the prosecutor submitted that the defendant should have obtained relevant information itself through functional assessment: even a preliminary functional assessment would have "identified the intensity of his aggression and violence and permitted steps to be put in place". Apart from the fact that the school had been advised that AK had a history of violence, the evidence of both Mrs Griffiths and Mrs Sparrow demonstrated that, even in his first few days of attendance, AK exhibited a worrying level of violence. Dr Stephenson gave evidence that an initial functional assessment interview with caregivers and teachers should be conducted immediately in the case of a student who exhibited violent behaviour, and that such an assessment could be usefully carried out before enrolment to identify aggressive behaviour. Again, one would expect that such an interview with caregivers in this case would have disclosed Mr Petrie's report.

161 The defendant did not dispute that the evidence established these failures, and indeed conceded that, on the subject of any potential defence, it did not suggest that it was impracticable or beyond its control to provide information of the kind described in the charge. Rather, the defendant resisted the charge on the basis of its general submissions as to liability: firstly, in relation to the elimination of the entire risk (in relation to this charge, pointing out that Mrs Griffiths was also assaulted by SH, who was well known to her, and asserting that the provision of information could not guarantee that AK did not become violent) and secondly, causation.

162 Having dealt with the defendant's submission on elimination of the entire risk previously, and having noted the establishment of the defendant's failures as charged, and the fact that the defendant raised no defence to the information aspect of this charge, determination of liability necessarily hinges upon whether there is a causal relationship between those failures and the risk to safety of the defendant's employees. I will address the issue of male teachers' aides special separately.

163 The first two particulars relate to the failure to equip the staff with adequate information concerning AK. I am satisfied beyond reasonable doubt that if the defendant had not failed in these respects, the staff at Kurrumbee dealing with AK would have been privy to Mr Petrie's report from the beginning of the school term. I do not believe that one can understate the importance of providing staff responsible for supervising a dangerously violent student with a report on that student's violence specifically commissioned by the defendant for the purpose of ensuring staff and community safety in another environment. The author's evidence that it was more likely than not that the triggers recorded in the report would have made AK violent in any environment only emphasise the significance of the defendant's failure. Dr Stephenson gave evidence that ignorance of violent potential and the triggers for such violence leads to a greater risk of being a victim of that violence and that it would be highly undesirable to leave a person in charge of a class who had no background knowledge in how to deal with or avoid triggering aggressive behaviour by a student. Yet this is exactly what the defendant did.

164 A cursory glance at the report reveals the significant nature of the information that would have been available to the staff of Kurrumbee (particularly Mr Terry and Mrs Griffiths) on 9 February 1999 and immediately suggests options which would consequently have been available to them. Indeed, both Mr Terry and Mrs Griffiths gave evidence of different actions they would have taken, which may well have averted the assault, had they known of the report's contents. Mr Terry would have decided that AK's presence was untenable (and acted accordingly), and Mrs Griffiths would have called for assistance before Mrs Crompton left. In brief:

· They would have been aware of the unusually extreme nature of AK's violence and the critical importance of AK being with someone he knew. Since this could not be provided, and the day was one of heightened risk, Mr Terry's evidence that, with knowledge of the report, he would have acted to remove AK is unsurprising; · Mrs Griffiths, left to supervise AK, would have been aware of Mr Petrie's recommendations under the heading "incident prevention" including the importance of being familiar with the signs AK used to communicate; to use a "games approach" or involve him in domestic chores; the importance of not being left alone with AK; the importance of keeping him occupied ("ensure plenty of activity options are available to him at all times"); to avoid any physical restraint (such as placing a hand upon his shoulder); and, in the case of any threatening action, not to turn away from him (which is exactly what she did on 9 February 1999) because to do so would lead to aggression (which is exactly what happened). · In particular, they would have noted the report's summary points: staff should maintain a safe distance if AK begins to get upset (minimum of two metres) and to be aware of all available exits (presumably to facilitate escape in critical situations); expect aggressive or violent behaviour at any time; provide him with many opportunities to communicate his needs when he is upset; and never engage him in a physical manner.

165 The defendant's submission that the school was already aware of AK's violence through observation (and, therefore, the report would not have made any difference) is disingenuous in the light of specific details outlined above. Although Mrs Griffiths may have been factually aware of a violent propensity, she was ignorant of its severity, triggers, and (perhaps most importantly) appropriate responses and responses which would invite aggression and must be avoided. Dr Stephenson's evidence clearly established the idiosyncrasy of each student and the corresponding importance of individual assessment and management. Sensitivity to individual behavioural patterns is relevant to the risk, risk assessment and risk management of severely intellectually disabled students with aggressive tendencies. Similarly, Mr Terry was unaware of the serious nature of leaving an aide alone with AK, given the severity of his violence and the demanding nature of the management required to control his aggression. It was the defendant's obligation under the Act to ensure the provision of the appropriate information as to those risks was conveyed to teaching and teachers' aide staff: see WorkCover Authority of NSW (Insp Glass) v Kellogg at 257 - 258 and WorkCover Authority of NSW (Inspector Bernard) v Rail Infrastructure Corporation (2001) 109 IR 209 at [110].

166 I am satisfied beyond reasonable doubt that the defendant's failure to provide adequate information as charged caused the detriment to Mrs Griffiths' safety (exposing her to the risk of assault by AK on 9 February 1999 in circumstances where AK was not only wielding a chair, but was also preventing her escape). In addition to the clear evidence of Mr Terry and Mrs Griffiths of the actions they would have taken with knowledge of Mr Petrie's report, it is clear that the report would have given them more options to prevent or reduce the risk of assault by AK. The most obvious example is the direction not to turn one's back on AK, the very act on the part of Mrs Griffiths which preceded the assault.

167 I am not, however, satisfied beyond reasonable doubt that the third particularised failure, relating to the exclusive employment of male aides in AK's class, caused the detriment to the safety of Mrs Griffiths identified in the charge. I have already given detailed reasons for my conclusion at paragraphs [104] - [107] that, on the available evidence, it would be difficult to ascertain the extent to which any reduction in AK's violence observed by Mrs Sparrow was due to increasing familiarity with his class teacher, the fact that his class teacher was a male, or, simply, to a higher staff to student ratio in the absence of the unusual circumstances of a strike. It is worth repeating that nothing in Mr Petrie's report distinguishes between men and women supervisors, although the report does stress the importance of familiarity. Although issues were raised by counsel as to the manner in which Mrs Sparrow's evidence could be used to assess liability, given that it related to circumstances post-dating the charge period, it is not necessary for me to resolve them because of my conclusion that the evidence, even if accepted without qualification, is not sufficient to establish a causal nexus.

168 In conclusion, I find the offence under s15 of the Act in relation to the first two particulars of the charge in Matter No. IRC 609 of 2001 proven.

169 The charge in this matter alleged that the defendant failed to provide adequate emergency equipment on 9 February 1999 to protect its employees from the risk of assault. In particular the prosecutor specified the following four failures on the part of the defendant: (a) allowing an employee to work in a classroom in which there was only an ordinary telephone system; (b) failure to provide a duress alarm system in the classroom; (c) failure to provide a personal duress alarm; and (d) failure to provide a personal mobile telephone. The assaults by AK and SH upon Mrs Griffiths on 9 February 1999 are particularised.

170 As with the charge in Matter No. IRC 609 of 2001 relating to information, the evidence clearly established the factual elements of each alleged failure beyond reasonable doubt and this was not disputed by the defendant. Further, in the context of any potential defence to this charge, the defendant conceded in oral submissions that it would not make any submission to the effect that provision of such equipment was not reasonably practicable. Nor did it make any submission that the provision of such equipment would be beyond its control and, consequently, no issue of a defence under s53 is raised for determination in relation to this charge. I have already rejected the defendant's submissions that the causes of aggression in severely intellectually disabled children are unknown and therefore uncontrollable and that the strike and weather were outside the defendant's control.

171 The defendant contested liability under this charge on the issue of causation, making two broad submissions. First, the defendant reiterated its general submission that there was no possible causal nexus because the equipment would only be used by employees after a risk to their safety had arisen (and therefore the failure to provide such equipment could not be said to have caused the risk). Secondly, the defendant submitted that causation could not be established, on the evidence, in relation to this charge: there was no evidence that on the day of the strike, with consequentially limited resources, in a classroom some distance from the nearest occupied classroom, the activation of such equipment would have made any difference. Neither of these submissions was addressed in convincing detail by the prosecutor.

172 I have already rejected the first general submission at paragraph 142: it is simply incorrect to state that the obligation to ensure against risk is extinguished by an earlier manifestation of that risk. It is not to the point to observe that duress alarms and the like would only be used once a risk to safety was apprehended. The relevant question, which leads to consideration of the defendant's second, substantive, submission, is whether the provision of such alarms or mobile methods of communication would have prevented further risks arising.

173 I am satisfied that the answer to that question is "yes". The limitations of an ordinary, fixed telephone system in a situation of direct threat by a determined and violent person are obvious. Not only are they fixed; they can also be rendered inoperable by an aggressor. A portable duress alarm, connected to the main office, was certainly a practical step which could have been taken by the defendant to permit Mrs Griffiths to avoid further risk by calling for assistance in circumstances where she was unable to leave the classroom or reach the fixed telephone by the doorway without exposure to the risk of assault. The evidence established that there was always someone present in the administration area between 8:30am and 4pm, and that the staff were trained to respond automatically and immediately to any activation of the alarms in the shower block. Mrs Griffiths' evidence further established that she would have activated a portable duress alarm the instant Mrs Crompton left the room. Not only would activation of such an alarm result in external aid without the need for explanation; it would also have given Mrs Griffiths more options to avoid confrontation. Left alone in dangerous circumstances, she would not have been obliged to make for a fixed point in order to call for help: she would have been able to manoeuvre between the divided classrooms, as circumstances developed, without sacrificing her very real need to call for assistance.

174 In the circumstances, I am satisfied beyond reasonable doubt that the defendant's failure to put in place adequate emergency equipment to call for assistance caused the detriment to Mrs Griffiths' safety on 9 February 1999 in that she had no choice (both for her own safety and the safety of vulnerable students under her supervision) but to call for assistance from a fixed ordinary telephone system, thereby standing immediately in the vicinity of a dangerously violent student wielding a chair with her back to him, the very act said by Mr Petrie to increase the risk of assault. Thus I find the defendant guilty as charged in Matter No. IRC 608 of 2001.

Matter No. IRC 610 of 2001 - counselling 175 The charge in this matter alleges that the defendant breached s15 of the Act by failing to provide "any or any adequate employee assistance and/or counselling" between 9 February 1999 and 9 August 1999. The following particulars of the alleged failure are specified in the charge: (a) failing to provide for about six months any or any adequate employee assistance and/or counselling and (b) allowing the employee to return to work after 9 February 1999 without providing any or any adequate employee assistance and/or counselling. The particulars of the charge describe the relevant risk as the risk of being assaulted by students demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm; refer to the assaults by SH and AK on 9 February 1999 and the assault by JB on 8 March 1999; and assert a causal nexus between the defendant's failure and the risk and manifestation of that risk.

176 The evidence established that Mrs Griffiths left Kurrumbee almost immediately after the assault on 9 February 1999 to go home where her daughter sought to persuade her to see her long-standing general practitioner. Mrs Griffiths declined until her husband persuaded her to do so the following day. Dr Roberts, in addition to treating her, immediately placed her on workers' compensation for three weeks, at the end of which he recommended that she postpone her return to work. Contrary to Dr Roberts' advice, Mrs Griffiths determined that she was well enough to return to work after the initial three weeks' workers' compensation leave and that she did not need to see him again. Ms Merrells gave evidence that when a patient has been certified as unfit for work, it was inappropriate for their employer to force them to undertake particular courses of treatment, especially in the first acute period following a trauma (such as the assault by AK).

177 The evidence further established that, after the assault on 8 March 1999, in addition to the continuing treatment of Dr Roberts, Mrs Griffiths was treated by a psychologist from the defendant's Employee Assistance Programme, Mr Heggarty. From September 1999 Mrs Griffiths commenced treatment with a psychiatrist, Dr Pusic. In October 1999, Mrs Griffiths commenced treatment with Ms Merrells, clinical psychologist, as part of a rehabilitation programme.

178 As I have mentioned earlier, the only service provider consulted by Mrs Griffiths to give evidence was Ms Merrells, who had no dealings with Drs Roberts or Pusic and, as noted above, did not see Mrs Griffiths until eight months after AK's assault. Nor was there any evidence to suggest that Ms Merrells had any contact with Mr Heggarty. Accordingly, there was no expert evidence before the Court as to Mrs Griffiths' mental health for the first eight months following AK's assault: as to her diagnosis, the cause of her condition, prescribed treatment, treatment actually undertaken, or the effect of that treatment. All that was established was that eight months after the assault, Mrs Griffiths suffered from post-traumatic stress syndrome.

179 In these circumstances, even assuming in favour of the prosecutor that the defendant failed to provide counselling or assistance as alleged in either particular of this charge (and the availability of the defendant's Employee Assistance Programme, together with Mrs Griffiths' status on workers' compensation raises an issue on this point), the prosecution has failed to adduce any evidence that such a failure caused Mrs Griffiths to suffer post-traumatic stress syndrome, let alone evidence to prove the connection beyond reasonable doubt. In fact there was evidence that notwithstanding counselling, patients could develop post-traumatic stress syndrome. There was simply no evidence to establish her mental condition over the relevant period, nor any evidence to establish how that condition would have been affected, had the defendant acted in the manner suggested by the prosecutor. In dismissing this charge on the basis of inadequate evidence, it is important to note that I am not making any finding which may preclude a charge of this nature, based on a risk to mental health, being brought under the Act in an appropriate case. Nor am I acceding to the defendant's submission that the charge must fail on the basis that there was no allegation that Mrs Griffiths was denied counselling "at work" and, therefore, a fundamental element of a charge under s15 of the Act had not been made out.

180 The charge in this matter alleges that the defendant breached s15 of the Act by failing to provide "any or any adequate training and reinforcement in the form of a self-protection course or communication strategies" between 9 February 1999 and 8 March 1999. The particulars of the charge describe the relevant risk as the risk of being assaulted by students demonstrating aggressive and/or challenging behaviour; refer to the assault by AK on 9 February 1999; and assert a causal nexus between the defendant's failure and the risk and manifestation of that risk. Although the time period extends to 8 March 1999, the prosecution submitted in its written submissions in reply that the assault by JB on that date should not be considered in relation to this charge.

181 For reasons which I will elaborate below, I find the defendant not guilty of the offence as charged in this matter. It must be said at the outset that the offence as drafted would be very difficult to establish: it is unclear why the prosecutor chose to restrict his allegation that training should have been provided to a particular, short time period; a time period, moreover, during which the employee was absent from work on workers' compensation (and therefore unavailable for training) for three of the four weeks specified; and then describe the time period in written submissions as "an essential ingredient" of the charge. I do not consider that the prosecution has established beyond reasonable doubt that the training as particularised should have taken place in that particular month, let alone on the particular days that Mrs Griffiths attended work. There was no evidence to suggest that training (either in self-defence or communication strategies) should be provided at least monthly, which would seem to be the only argument available to the prosecutor on the charge as drafted.

182 Notwithstanding the difficulties of timing raised in the charge, I have come to the conclusion that the charge must fail on the issue of causation. There is simply no evidence that any amount of training in self-defence or general communication strategies (particularly for a teachers' aide of Mrs Griffiths' lengthy experience) would have alleviated the risks to Mrs Griffiths on 9 February 1999 where, unsupported by a teacher and unable to leave, she had to protect not only herself but one particularly vulnerable student.

183 Although the charge as drafted makes this discussion hypothetical - the evidence clearly established that no training was provided in the specified period - I think it is important to record my opinion that the evidence does not establish, to the required level of proof, any real failure on the part of the defendant. To a significant extent, particularly in relation to communication strategies, this is due to the imprecise nature of the charge and the fact that in submissions both parties essentially ignored substantive issues which would bear upon the alleged failure.

184 Self-defence training was provided in 1995, 1996 and 1997. There was no evidence as to whether it was provided in 1998 or not; nor was there any evidence as to how frequently such training should be provided in order to be effective in circumstances such as those at Kurrumbee. Finally, I do not consider that the evidence established that the self-defence training which had been provided was inadequate, and no submission was made by the prosecutor to this effect.

185 In support of the charge as it related to communication strategies the prosecutor relied upon Mrs Griffiths' evidence that she had not received any formal training in communication skills with students with aggressive behaviour. However, the matter of Mrs Griffiths' significant daily experience with intellectually disabled students (no less than 20 years at the same school) was never addressed by the prosecutor; and I fail to see how the prosecutor could establish a relevant failure as to the provision of general communication skills beyond reasonable doubt without at least addressing this issue and directing attention to specific inadequacies which would have been addressed by the training which it is alleged should have been provided to address the risk. The prosecutor also relied upon evidence given by Dr Stephenson that "it would be highly undesirable to leave a person in charge of a class who had no background or training to cope with students who exhibited challenging or violent behaviour, or who had no specific knowledge in how to deal with or avoid triggering aggressive behaviour by a student". However (apart from the issue of individually relevant information, which has been dealt with in the information charge), this evidence squarely raises the issue I have already expressed: Dr Stephenson expressed training as an alternative to experience.

186 Finally, the prosecutor relied upon the following introductory reference in an academic paper published by Dr Stephenson in 1997 promoting functional assessment as a means of changing aggressive or violent behaviour: There is no doubt that generic best practices in education such as the provision of meaningful activities and opportunities for choice making, training in functional communication skills and motivating leisure activities will go some way towards reducing challenging behaviour.

187 However, as I have noted, the paper essentially deals with the desirability of subjecting individual students to functional assessment in an effort to predict and reprogram aggressive behaviour; the method has been considered in detail earlier in the judgment. Apart from extracting the above quotation in written submissions, the prosecutor did not refer to this matter again in the context of this charge. Accordingly, the Court has no guidance as to what functional communication might be in the context of this charge; how it relates to functional assessment; the nature of the training which it is alleged should have been provided; how this would contribute to Mrs Griffiths' experience; and the relevance of any such training in the circumstances she found herself in on 9 February 1999. One could speculate that functional communication is communication with an individual student in the light of the results of a functional assessment of that student, but, owing to the incomplete and unclear manner in which this charge was presented to the Court, the matter can go no further.

188 Having reached the conclusion that the defendant has not committed an offence under this charge, it is obviously unnecessary to consider any issues in relation to defences under s53 of the Act.

189 I do not consider that it is necessary to determine the prosecutor's submission that I should infer that evidence which may have been elicited from Mr Robert Manwarring or from Ms Julie Edwards would not have assisted the defendant. The only charge to which such an inference would be relevant is the information charge, and I have already found the offence proven in that matter without the need to draw such an inference. In any event, in Dyers v The Queen (2002) 192 ALR 181, the High Court (per Gaudron and Hayne JJ at [5], Kirby J at [52] and Callinan J at [121 - 123], with McHugh J dissenting) found that it is ordinarily inappropriate for a trial judge to direct a jury in a criminal trial that, inter alia, a defendant would be expected to call others to give evidence. The exceptions to this general rule are rare (see the judgment of Gaudron and Hayne JJ at [5]). The limitation on the drawing of Jones v Dunkel inferences in criminal jury trials would seem to be applicable in summary criminal trials, such as the present matter, as it is based upon the general principle that the accused is not bound to give evidence and it is for the prosecution to prove its case beyond reasonable doubt (see Dyers at [9] and [121]). It is not entirely clear, however, whether the limitation would also apply in the case of a corporate defendant (or the Crown as a defendant) under this Act.

190 The defendant faintly contended that the prosecutor should have led evidence from Mr Hamilton, Ms Crompton and Ms Muggleton. However, the submission was merely responsive to the prosecutor's submission seeking that the Court draw a Jones v Dunkel inference. It is also not clear whether the complaint was directed to a failure of a prosecutional duty or put as a contention concerning Jones v Dunkel. If it was the latter proposition, there was a failure to identify just what significance the omitted evidence may have in these proceedings. In the result, I do not propose to accept the defendant's submission (to the extent pressed) in this respect. I note that it would appear that, as a general proposition, the defendant (in contrast to the prosecutor) may not be precluded from advancing such a submission (albeit unsuccessfully), even though Gaudron and Haynes JJ expressed a contrary view in Dyer at [6] - see the decision of Heydon JA in R v Riscuta; R v Niga [2003] NSWCCA 6. Whether or not the judgment of Gaudron and Haynes JJ in Dyer in this respect may be applicable in a case where the defendant relies upon a Jones v Dunkel inference advanced in the context of a defence raised by the defendant under s53 of the Act will require further consideration in some later judgment. Conclusions 191 I make the following findings and determinations: (a) the offence has been proven in Matter No. IRC 607 of 2001, although the prosecutor did not sustain the charge in relation to particular (a). Failure to establish a particular is not fatal to a prosecution: Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 at 484. In relation to Matter No. IRC 607 of 2001, I find that no defence is available to the defendant under s53 of the Act; (b) the offence has been proven in Matter No. IRC 608 of 2001; (c) the offence has been proven in Matter No. IRC 609 of 2001 (although the prosecutor did not sustain particular (c)); (d) the defendant's concessions on the subject of potential defences in Matters No. IRC 608 or 609 mean that effectively no issue was raised as to a defence in relation to these matters; and (e) finally, I find the defendant not guilty of the charges in Matter Nos. IRC 610 and 611 of 2001.

192 I will hear submissions on penalty on a date to be fixed by arrangement between the parties.

Orders 193 The Court makes the following orders: 1. The offence in Matter No. IRC 607 of 2001 is proven 2. The offence in Matter No. IRC 608 of 2001 is proven 3. The offence in Mater No. IRC 609 of 2001 is proven 4. The applications and charges in Matter Nos. IRC 610 and 611 of 2001 are dismissed. 5. The prosecutor and defendant shall advise the Court of mutually available dates for a sentencing hearing within 7 days.

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