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[2011] NSWIRComm 33
Industrial Relations Commission (NSW)
2010-08-19
Boland P, Walton VP, Staff J, Schmidt J, Boland J
Original judgment source is linked above.
work Constructions Pty Ltd [2007] NSWCA 144 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 Environment Protection Authority v Sydney Water Corp Ltd (1997) 98 A Crim R 481 Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 Inspector Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259; (2004) 136 IR 449 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 John L Pty Limited v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569 Makarian v R [2005] HCA 25; (2005) 228 CLR 357 Narayan v Inspector Chamings [2007] NSWIRComm 281; (2007) 169 IR 414 Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 R v Hamzy (1994) 74 A Crim R 341 R v Holder [1983] 3 NSWLR 245 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Stanton v Abernathy (1990) 19 NSWLR 656 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill [2009] NSWIRComm 122 State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14 Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 Texts Cited: "Occupational Wellbeing and Performance: a Review of Organisational Health Research", Australian Psychologist, 38(1), 2003, pp 118-127, Cotton P and Hart P M "Developing an Optimal Organisational Climate: Towards Australia's Safest Workplaces 11 Conference Paper", March 2004, Canberra, Cotton P "Work related stress and Depressive Disorders" published in the Journal of Psychosomatic Research 51 (2001) at pp 697-704, Professor Tennant Category: Principal judgment Parties: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (Appellant) John Joseph Cahill (Respondent) Representation: J V Agius SC with W G Thompson of counsel (Appellant) B G Docking of counsel (Respondent) Crown Solicitor's Office (Appellant) W G McNally Jones Staff (Respondent) File Number(s): IRC 1072 of 2009 Decision under appeal Citation: Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 Before: Schmidt J File Number(s): IRC 1390 of 2006 IRC 1391 of 2006 IRC 1392 of 2006
Judgment
INTRODUCTION 1This is an appeal by the State of New South Wales (Department of Education and Training and Department of Juvenile Justice) from judgments of Schmidt J in Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 given on 19 December 2008 ("the liability judgment") and Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 given on 26 June 2009 ("the sentencing judgment"). The appeal is brought pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA(1)(a) of the Criminal Appeal Act 1912. 2Pursuant to s 120 of the Occupational Health and Safety Act 2000 ("the OHS Act") in the first instance proceedings, both the Department of Education and Training ("DET") and the Department of Juvenile Justice ("DJJ") were the responsible agencies in respect of the two "occupational violence" charges (Matter Nos IRC 1390 and 1391 of 2006). DET was the responsible agency for the purposes of proceedings against the Crown in respect of the "psychologically unsafe" charge (Matter No IRC 1392 of 2006). 3We will come to the detail of the three charges dealt with by Schmidt J shortly, but in brief it had been alleged against the appellant by John Joseph Cahill, the General Secretary of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (who was authorised to institute the three charges under s 106(1)(d) of the OHS Act), that the appellant had contravened s 8(1) of the OHS Act by failing to ensure the health, safety and welfare at work of all of its employees and, in particular, two Teacher's Aide Special ("TAS") employed by DET at the Putland Education and Training Unit ("Putland"), a unit located in the Cobham Juvenile Justice Detention Centre ("Cobham"). 4Section 8(1) of the OHS Act requires an employer to "... ensure the health, safety and welfare at work of all the employees of the employer". The duty of care owed by an employer is an absolute duty subject only to the statutory defence provided for under the provisions of s 28 of the said Act. That was recently confirmed in the decision of Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569 (" Kirk " ). Section 28 (which the appellant unsuccessfully relied upon at first instance) provides a defence for an offence against the provision of the OHS Act or Regulation if it is proven that: (a) it was not reasonably practicable for the person to comply with the provision, or, (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 5It was alleged by the respondent that on 10 and 15 March 2004 and for the period 10 to 17 March 2004 at Putland the appellant failed to ensure the health, safety and welfare of two TAS, who we shall refer to as "TAS Mary" and "TAS Su" (consistent with how Schmidt J protected their anonymity) in that: (i) it did not ensure the systems of work and the working environment of the employees were safe and without risks to health; and (ii) by allowing there to be a psychologically unsafe place of work. 6The appellant strongly defended the charges and denied that any of the alleged offences had been committed. Schmidt J held, however, that the three charges had been proven (see [844] of the liability judgment). Her Honour subsequently attended to the sentencing of the appellant by imposing fines as follows: (i) in Matter No IRC 1390 of 2006 a penalty of $160,000; (ii) in Matter No IRC 1391 of 2006 a penalty of $200,000; (iii) and in Matter No IRC 1392 of 2006 a penalty of $180,000. A moiety and costs as agreed or assessed were ordered in favour of the respondent (see [112] of the sentencing judgment). 7A stay of her Honour's judgments and orders was granted on terms: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill [2009] NSWIRComm 122.
BACKGROUND FACTS 8Cobham is operated by DJJ. It is, as the name suggests, a juvenile detention centre. Male youths aged between 10 and 21 years of age are detained on remand at Cobham for various types of offences, many serious, and many involving acts of violence. As at March 2004, Cobham had a capacity of 60 detainees. Some 3,000 detainees are located at Cobham over the course of a year. Some detainees return to Putland on more than one occasion. Most detainees remain for relatively short periods of time. Those on control orders (having already been convicted of the offences with which they were charged) remain for longer periods. 9Putland is the major provider of education programs at Cobham. It is funded and staffed by DET under the direction of a principal. The Unit had the capacity of 66 student places at any one time and to operate 11 classes with a maximum of 6 to 8 students in each. Cobham detainees are given the opportunity to attend Putland, to undertake a variety of educational courses offered at both high school and TAFE levels. 10Schmidt J described the procedure that applied to detainees taking classes and the physical environment at [26]-[27] of the liability judgment: [26] Each morning, detainees undertaking educational courses at Putland were escorted from their units to the school by juvenile justice or youth officers (DJJ officers). Classes typically consisted of six detainees, taught by a teacher, who was assisted by a TAS. DJJ officers did not generally remain in the classrooms with the detainees, but were stationed in the vicinity, so that they could provide assistance, if required. Assistant principals (A/P's) were also available to assist staff with problems arising with detainees during class. [27] In March 2004, the classrooms were located around two quadrangles. In the larger quad, there was a pergola. A number of DJJ officers were stationed at the pergola during class, in order to be able to provide assistance to the school staff, if it was required, or to escort detainees from class, if they had to leave for any reason. An A/P was also located in that quad, available to provide assistance with any issues which might arise in class. That A/P was not always in the quad, being called away on occasions to the classes adjoining a second quad, or on occasions attending to a particular student, in a particular class. 11On 10 March 2004, a class in the General Education program included detainee TD. He was 15 years of age (one month later he was to turn 16 years of age). On 15 March 2004, a class in the General Education program in Sessions 3 and 4 was programmed to include detainee BH. This detainee was 17 years of age (four months later he was to turn 18 years of age). This was at least the fourth time BH had been at Cobham. 12The class teacher for both of these General Education classes was teacher Ron. In March 2004, teacher Ron was 56 years old. He commenced at Putland in October 2002 in a permanent position as a teacher. The TAS for both of these General Education classes was TAS Mary. TAS Mary started work at Putland (then called "Cobham School") in 1991. TAS Mary in March 2004 was 54 years old. Another TAS working at Putland was TAS Su. In March 2004, TAS Su was 46 years old. TAS Su started at Putland in January 2002. 13On 10 March 2004, an incident occurred in the class being taught by teacher Ron and TAS Mary involving threatening behaviour by TD towards teacher Ron. When personal duress alarms were activated to call for assistance, there was no response and the two staff members were left alone to deal with TD. TD left the classroom, but was able to return, in the company of another detainee, to make further threats. Still no assistance was provided. 14On 15 March 2004, TAS Mary was again working in class with teacher Ron when BH threw a chair at him whilst proceeding to cause damage to the library in which the class was taking place. Several juvenile justice officers restrained BH and removed him from the class. The detainee was later charged with assault and transferred from Cobham. TAS Su observed some part of these events, particularly the struggle that occurred when DJJ officers sought to restrain BH. On 17 March, a fight broke out between two detainees in a classroom in which TAS Su was working that day. Juvenile Justice staff dealt with those detainees when assistance was called. 15Teacher Ron, TAS Mary and TAS Su each took sick leave and were later diagnosed and treated for psychological injuries. TAS Mary did not return to work at Putland after 15 March 2004. Teacher Ron went on sick leave some days later. He also never returned. TAS Su did not return to work after 24 March 2004.
THE CHARGES 16The three charges were in the following terms: Matter No IRC 1390 of 2006 On 15 March 2004 at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training, and Department of Juvenile Justice) whose address is 35 Bridge Street, Sydney and 477 Pitt Street, Sydney in the State of NSW, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular [TAS Mary] and [TAS Su], in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. The further particulars of the charge are: a) There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer. b) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent detainee BH from being in the class. ii) Failing to have a Juvenile Justice Officer present in the class room to support and monitor students, classes and program delivery staff. iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee BH, which required consultation with the teacher and the TAS allocated to the class, provision of the history of BH, assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. iv) Failing to provide adequate information in relation to records of actual violence, threatened violence, anti social behaviour and/or psychological information of detainee BH and incident prevention or reduction strategies. v) Failure to provide adequate information, instruction and training including on self defence, assault response and/or behaviour management. c) The psychological injuries to [TAS Mary] and [TAS Su] were a manifestation of the risk. Matter No IRC 1391 of 2006 On 10 March 2004, at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training, and Department of Juvenile Justice) whose address is 35 Bridge Street, Sydney and 477 Pitt Street, Sydney in the State of NSW being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular [TAS Mary], in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. The further particulars of the charge are: a) There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer. b) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent detainee TD from being in the class. ii) Failing to have a Juvenile Justice Officer present in the class room to support and monitor students, classes and program delivery staff. iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee TD, which required consultation with the teacher and the TAS allocated to the class, provision of the history of TD, assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. iv) Failing to provide adequate information in relation to the history or incidents of actual violence, threatened violence, anti social behaviour and/or psychological information of detainee TD and incident prevention or reduction strategies. v) Failure to have adequate emergency communication equipment and systems for employees to summons help. vi) Failure to provide adequate information, instruction and training including on self defence and/or behaviour management. c) The psychological injuries to TAS Mary were a manifestation of the risk. Matter No IRC 1392 of 2006 Between 10 and 17 March 2004 at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training) whose address is 35 Bridge Street, Sydney in the State of NSW, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular [TAS Mary] and [TAS Su], in that the defendant allowed there to be a psychologically unsafe place of work contrary to the duty under section 8(1) of the Occupational Health and Safety Act 2000. The further particulars of the charge are: a) There was an actual risk of the absence of or inadequate management support increasing the potential danger of an individual teacher's aide special ("TAS") developing occupational stress, namely, post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders. b) Aspects of the defendant's psychologically unsafe place of work were any of the following: i) Failure to provide social support on 10 March 2004 in the form of supportive management or leadership when the Principal left the unit to follow three escaping detainees and thereby left the employees of the unit without adequate support. ii) Failure to provide social support in the form of adequate consultation when the Principal did not make herself aware of the incident on 10 March 2004 in which class teacher [Ron] and [TAS Mary] were subject to abuse in the class room and there was not an adequate response to an emergency summonsing for help. iii) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS [Mary] brought to the attention of the Principal, after the Principal returned from chasing the escaped detainees, that during the 10 March 2004 class room incident an urgent request for help went unanswered. iv) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS [Mary] on 10 March 2004 at an impromptu staff meeting attempted to discuss safety issues with the Principal. v) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS [Mary] attempted to raise and discuss matters with the Principal at the next weekly staff meeting after the 10 March 2004 class room incident and escape incident. vi) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when the Principal never sought the views of TAS [Su] about the bomb scare, class room fight and escape on or after 17 March 2004. vii) Failure to have in place an occupational health and safety committee established by the employer and Departmental employees for the place of work. c) The psychological injuries to [TAS Mary] and [TAS Su] were a manifestation of the risk.
REQUEST FOR FURTHER PARTICULARS 17Prior to the hearing of the charges the appellant sought and received further and better particulars from the respondent in relation to the matters. The particulars provided in relation to IRC 1392 of 2006 stated that the term " the absence of or inadequate management support" was pleaded in the alternative and the reference to "social support" was in the form of "instrumental assistance, communication and consultation" . At the hearing, her Honour confirmed with the respondent that the term was to be taken to mean, "support in the form of adequate management or leadership" and/or "adequate consultation". The respondent also relied upon s 3(c) of the OHS Act to found the term " social support" . That provision states that an object of the OHS Act is: to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs
ADMISSIONS 18As Schmidt J recorded in the liability judgment at [11], admissions were made by the appellant in the following terms:
APPEAL GROUNDS 19The grounds of appeal were as follows: A. Her Honour lacked jurisdiction to enter a conviction and order a penalty in each of the matters IRC 1390, 1391 and 1392 of 2006. B. The charges IRC 1390, 1391 and 1392 of 2006 were defective in substance and form and did not particularise properly the acts and omissions said to found the charges. C. Her Honour erred when she determined that the Defendant was guilty of each of the charges IRC 1390, 1391 and 1392 in that her Honour was in error in determining that TAS Mary and TAS Su were at risk of, or suffered 'psychological injury', in circumstances where her Honour failed to have regard to the common law definition of 'psychological injury' and determined that the common law concept that 'psychiatric damage is of a different kind of damage from personal bodily injury' as identified in Morgan and Anor v Tame (2000) 49 NSWLR 21 was not relevant to a consideration of: (i) The obligation imposed by s. 8 (1) of the Occupational Health and Safety Act, 2000 (the Act); (ii) The nature and quality of any risk to health and safety; (iii) The determination of any defence pursuant so s 28 of the Act. D. Her Honour erred in finding charge IRC 1392 of 2006 did not lack certainty, was capable of supporting a conviction and that the particulars were neither ambiguous nor overlapping in nature. E. Her Honour misconstrued, in the determination of liability and penalty, the obligations imposed upon an employer pursuant to s8 (1) of the Occupational Health and Safety Act 2000 and in particular the obligations imposed on the defendant as an employer in relation to the risk arising from the acts and omissions as pleaded in each of the charges IRC 1390, 1391 and 1392 of 2006. F. Her Honour erred in determining that there was a causative link established between the particularised acts and omissions in and the risk alleged in each of the charges IRC 1390, 1391 and 1392 of 2006. In particular, her Honour erred: (i) By considering the causative link in each matter prior to determining whether each of the particulars had been proven. (ii) By considering the causative link to a general class of risk and injury and not the risk and injury pleaded; (iii) Failing to determine whether a causative link was established between the risk, the particular acts and omissions of the defendant and the injuries diagnosed for TAS Mary and TAS Su; (iv) By misunderstanding and misapplying the concepts of 'correlation' and 'causation' in relation to factors that could contribute to psychological injury; (v) By failing to apply the test of beyond reasonable doubt to the acts and omissions pleaded and the risk of psychological injury; (vi) By relying on the 'cumulative exposure' of TAS Mary and TAS Su to the risk as being causative of both potential injury and injury when 'cumulative exposure' was not pleaded, particularised or established on the evidence in each of the charges. (vii) By finding that there was sufficient notice to the defendant that TAS Mary and TAS Su were persons vulnerable to psychological injury prior to 15 and 17 March 2004 respectively; (viii) By failing to distinguish between the causative factors linked with vocational dissatisfaction and those linked with occupational stress in determining the causative link was established between the risk, the particulars and the injury to TAS Mary and TAS Su. G. Her Honour misconstrued the provisions of s.28 of the Occupational Health and Safety Act 2000 in determining that the defences were not made out and the charges IRC 1390, 1391 and 1392 of 2006 were proven. In particular, her Honour misconstrued in her determination that the defences were not established: (i) By requiring the defendant to prove that it was not reasonably practicable to implement all available measures, being measures for which it was not charged and which did not fall within the acts and omissions particularised in each of the charges IRC 1390, 1391 and 1392 of 2006; (ii) By determining that the operation of the s.28 defences of the Occupational Health and Safety Act 2000 did not differ in relation to the risk of a physical injury or a psychological injury; and (iii) By misunderstanding the nature and scope of the defences relied upon. H. Her Honour erred in the determination of liability and penalty in matters IRC 1390, 1391 and 1392 of 2006 in that her Honour: (i) Relied upon factual matters that were not the subject of the charges and which were not pleaded; (ii) Relied upon factual matters for which there was insufficient evidence; (iii) Erred in determining that the acceptance of liability for the injuries sustained by TAS Mary and Su for the purposes of the Workers Compensation Act 1987 (NSW) amounted to an admission for the purposes of the prosecutions of the Defendant, and that it should be taken as evidence that the Defendant was responsible for the risk of injury to and injuries claimed to be sustained by TAS Mary and Su, the subject of the charges; (iv) Made inconsistent findings of fact against the Defendant; and (v) Failed to give adequate weight to all of the relevant evidence when dealing with the acts and omissions pleaded in the charges. I. Her Honour misconstrued the principles to be taken into account in the determination of penalty in each of the charges IRC 1390, 1391 and 1392 of 2006 and as a result the penalty imposed was manifestly excessive in that: (i) the nature of the injuries sustained by TAS Mary and TAS Su was treated as an aggravating factor in the determination of penalty; (ii) insufficient weight was given to mitigating factors; (iii) matters that were not pleaded or were not relevant to the charges were taken into account; and (iv) in applying the totality principle inadequate weight was given to the overlapping nature of the charges and evidentiary matters relied on to find the offences proven. (v) the defendant was in effect penalised with respect to the cumulative exposure of TAS Mary and TAS Su to the risk and not just with respect to the incidents pleaded, (vi) inadequate account was taken of the difficulties of the defendant being able to reasonably foresee the injuries to TAS Mary and to TAS Su in the circumstances (vii) her Honour erred in finding that the injuries to TAS Su and Mary were a manifestation of the risk.
GROUND A 20As the appellant submitted, the ultimate issue to be determined in this appeal is whether her Honour had jurisdiction to enter a conviction and order a penalty in each of the Matters IRC 1390, 1391 and 1392 of 2006. In this respect, the appellant relied on Kirk to submit: each of the three charges were defective in substance and form in that they did not identify the risk and the measures relied upon by the respondent to obviate that risk so as to constitute an offence against s 8 (1) of the OHS Act ( Kirk at [14]-[17]) ; the construction applied to the operation of s 8(1) and s 28 by her Honour was in error ( Kirk at [16]-[19]) ; the approach taken by her Honour to determine the causative link in each charge was in error ( Kirk at [32]-[37]); the s 28 defences were not applied in a manner that permitted the defence to be properly raised ( Kirk at [16]-[19]). 21Each of the foregoing propositions is dealt with in our consideration of Grounds B to I.
GROUND B 22It was submitted for the appellant that each of the charges in IRC 1390, 1391 and 1392 of 2006 were deficient, in that the charges: Refer to a general class of risk and not a specific identifiable risk. Fail to specify the measures that were relied upon by the respondent to address the risk pleaded. The charges did not permit the proper operation of the statutory defences pursuant to s 28 in the same manner as identified in the Kirk decision at [16]-[19] as a result.
Risk pleaded in paragraph (a) of Matter 1390 and 1391 of 2006 23The risk pleaded in Matters 1390 and 1391 was that: a) There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer.
What occurred on 15 March 2004 24It will be recalled that Matter 1390 concerned the events of 15 March 2004 when BH threw a chair at teacher Ron, witnessed by TAS Mary who was in the classroom. BH had to be physically restrained by DJJ officers. TAS Su witnessed part of what occurred when DJJ officers were seeking to restrain BH outside the classroom in the quadrangle. 25In the liability judgment, Schmidt J referred to a report by Janet Koussa, Consultant and Counselling Psychologist, who had interviewed various personnel about what happened on 15 March 2004, including TAS Mary and TAS Su. Ms Koussa's report of TAS Mary's account included the following: In describing the day she went off work TAS Mary reported that the ETU was down to three classrooms due to the escape attempt on the previous Wednesday (10 March, 2004). As a result of the escape attempt, she explained that four classrooms had been shut down as they had been security breached by the escapees. TAS Mary reported that teaching sessions one and two on Monday, 15 March 2004 were in the same classroom and with the same students as usual but that the usual students were replaced with new students for sessions three and four. TAS Mary reported that their usual students had been settled because they "knew us" but that generally, none of the students like attending class for sessions three and four. She stated that it was Teacher Ron's first dealing with those new students and that the students had been resentful on the previous Friday about the class room changeovers that had occurred on that day but that despite their protests the same changeovers had been repeated on Monday 15 March 2004. TAS Mary said that the six new students came in saying "what the fuck are we coming in here for?" in reference to the classroom changeovers. Due to the fact that the most disruptive student (BH) was of Lebanese origin, TAS Mary said that Teacher Ron had decided to present geography with a focus on the Middle East so as to interest the disruptive student. She reported that this particular student (BH) was very arrogant, confident and always expected to get things his own way and not to be challenged, she said that he had an air of "I am in command". TAS Mary said that Teacher Ron managed to get BH engaged in the Middle East studies; however, two other students had to be removed from the classroom as they refused to "do their schoolwork". TAS Mary said that the trouble with BH started to escalate approximately 15 minutes into the session when he demanded to go to the toilet. TAS Mary reported that BH did not wait for either Teacher Ron or herself to ask a youth worker if a bathroom was free (as was the usual practice) but that he proceeded to walk out of the classroom in a determined and threatening way against Teacher Ron's protests. She also reported that BH did not come straight back to the classroom as he is meant to do but that he approached Ms Sue G. an Assistant Principal in the quadrangle immediately outside his classroom and engaged her in conversation. TAS Mary said that she saw this and called BH to come back to the classroom; he did so; did a couple of more minutes of work and then proceeded to demand to know what points he would receive from session three. She explained that students receive points for good behaviour that they can swap for privileges later of in the evening at the detention centre. TAS Mary explained that by this stage it was approximately 35 minutes into the usual 1 hour teaching session and that the Assistant Principal, Ms Rebecca B. was called on the radio to come and take BH out of the classroom for being disruptive. Ms Rebecca B. removed to BH from class and returned him again after approximately 10 minutes but that she remained in the classroom with him. Due to his behaviour, TAS Mary reported that Ms Rebecca B. had asked a youth worker to wait outside the classroom for the rest of the session. TAS Mary said that BH did not settle: first he demanded "I what [sic] those books in the window"; then he attempted to leave the classroom again; then he commenced again with "I want my fucking points, tell me my fucking points". According to TAS Mary, Teacher Ron tried to explain to BH that he would tell him his points when he had finished with another student, but this was not good enough for BH. TAS Mary said that BH rose up out of his chair and shouted to Teacher Ron "are you going to take my fucking points away from me?" He then picked up the chair he was sitting on, stepped back, lifted the chair to shoulder height and threw the chair at Teacher Ron, just missing Teacher Ron's head. According to TAS Mary, BH then went across to the bookshelves and flung magazines off as he continued shouting about his points. She reported that the youth worker, who had been waiting outside of the classroom, had already come into the classroom to assist but that a call had also been placed for more youth officers to attend. BH continued moving around the classroom demolishing the rest of the books off the bookcases. TAS Mary stated that she attempted to subdue one of the other students as she could see that he was considering joining in the trouble-making with BH. At this stage TAS Mary reported thinking: "what hope do we have if the youth officers cannot subdue him?" She said that she could see that if BH got past the youth officers, he would hurt her. She reported that eventually the youth officers were able to physically restrain BH and led him out of the classroom but that things got even worse outside and that BH physically assaulted the youth officers. TAS Mary stated that she remembers seeing blood on one of the youth officer's trousers but that she does not recall much else about the day and that she felt "spaced out". She reported that she completed the day at work but that Teacher Ron had had to follow her home in the car to make sure she arrived home safely and that when she got out of the car she felt as if she was "walking funny" (referring to feeling weak at the knees). TAS Mary reported that she did not return to work after Monday 15 March 2004. TAS Mary claimed that she had tried to raise her concerns about staff safety in the ETU with the Principal, Ms Kate W., but that each time she was made to feel as if she was exaggerating and reported that when she had tried to raise these issues in staff meetings, Ms Kate W. had "cut her off". TAS Mary reported that she does not feel able to return to Putland ETU despite having worked there for approximately 12 years. TAS Mary also stated that her colleague, Teacher Ron had also gone off work following the incidents on Wednesday, 10 March, 2004 and Monday, 15 March, 2004. 26Ms Koussa's report of TAS Su's account of what she witnessed on 15 March 2004 included the following: TAS Su also described a situation on 15 March 2004, in which a student, BH had become verbally and physically violent in class and then "completely lost the plot" in the quadrangle when the youth officers had brought him out of the class. TAS Su said that she had witnessed BH in the courtyard, "I've never seen anybody that out of control, the noises he was making; the physical assault on the youth officers; they [youth officers] handcuffed him; it was awful."
What occurred on 10 March 2004 27Matter 1391 concerned what occurred on 10 March 2004 and its effect on TAS Mary. Ms Koussa recorded TAS Mary's account of what had happened on 10 March as: TAS Mary explained that she had gone off work on Monday in [sic] 15 March, 2004 after a critical incident in which a disruptive and verbally abusive student had also become physically violent and that she had been scared. TAS Mary said that she had already been worried about her physical safety in the classroom at Putland ETU following a critical incident the previous week (Wednesday 10 March, 2004) where the [sic] both she and Teacher Ron. (the teacher for whom she is teacher's aide) pressed the duress alarm three times (between them) during a teaching session, with no response from the youth officers. She explained that on 10 March, 2004 there had been an escape attempt by three students at Putland ETU, two of whom had been successful in their escape. On that day, she said one student (TD) had been particularly disruptive and had become verbally and physically abusive towards Teacher Ron. She related that later they understood that the level of disruption was quite possibly to do with diverting attention away from the escape attempt. Nevertheless, youth officers were not available to respond to the duress alarm because they were busy with the escape attempt. TAS Mary reported that the night of 10 March, 2004 she dreamt that the Asian student's [T] nails were steel and that "he was ripping my throat out". She reported that all of the following day she felt as if she were in "a daze". TAS Mary reported that that night (10 March, 2004) she had also become preoccupied and distressed about two critical incidents that had occurred in February and March of the previous year. 28In a behavioural report on the incident of 10 March 2004 that was required to be submitted, Teacher Ron stated: TD came to class demanding to know his points from yesterday presumably he was annoyed by his early bed. I agreed to discuss his points after first bell. He was unhappy with this but contented himself with calling me a 'fucking cunt.' I warned him this was unacceptable and after that he continued swearing at me from across the table. During session 1 on Wednesday 10.3. TD
No disagreement about conduct of TD and BH 30At [332] of the liability judgment, Schmidt J observed that although there were various inconsistencies in the evidence of TAS Mary and teacher Ron and with the details of other accounts that they had given about the events of 10 and 15 March, the differences in detail was not surprising. We are unable to discern any material disagreement about what occurred on 10 and 15 March 2004 in relation to the conduct of TD and BH. Both detainees were disruptive and abusive, aggressive and intimidating towards teacher Ron. There was a violent confrontation between BH and DJJ officers in the quadrangle on 15 March 2004, as the officers sought to subdue BH and which TAS Su witnessed.
Finding at first instance 31At [409] of the liability judgment, Schmidt J held that the risk in Matter 1391 as pleaded in paragraph (a) had been made out: [409] It follows on the evidence that allowing TD to attend class that day thus involved 'an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour', cannot be doubted, given TD's high risk assessment under the system and the behaviour which occurred that day in class, which led to TD's removal from class at about 9.50 am. 32Similarly, in respect of Matter 1390, her Honour found: [562] There can be no doubt that this particular was made out. As at 15 March 2004, the risk in question, being injured as the result of being subjected to or witnessing violent and anti-social behaviour in class, was known. ... ... [566] ... On 15 March, this need materialised for TAS Mary, when BH's behaviour escalated entirely out of control in class, after he was returned to class by A/P Rebecca, having abused teacher Ron over his points. Despite leaving class again without permission, he was allowed to return. When informed of the result, loss of further points, his behaviour disintegrated. That day BH plainly put the safety of TAS Mary and of others present in class at risk, by his behaviour. ... [574] While BH was finally able to be restrained, albeit with difficulty in the classroom, in the quad, his outburst continued to the point where it took a large number of DJJ officers to restrain him, after he had assaulted one officer, while he was howling like an animal, events observed by both TAS Mary and TAS Su, with a result that there can be no doubt, that TAS Mary and TAS Su were put at risk of injury, as charged.
Was the pleading regarding risk too uncertain or general? 33The appellant submitted that in respect of the risk identified in paragraph (a) in Matters 1390 and 1391: there was no further identification as to the nature and extent of the 'violent behaviour', 'threatened violent behaviour' and/or 'anti-social behaviour' that was alleged to arise on 10 and 15 March as an 'actual risk'. Likewise, no information was provided to identify the detainee a TAS had 'to control or restrain'. No detainee was named in paragraph (a) as demonstrating the behaviour that was alleged to constitute the 'actual risk'. No individual TAS employee is named as being at 'actual risk' within paragraph (a). There was no information that identified in paragraph (a) the nature of the psychological injury, or general class of psychological injury that could result from a TAS being subject to, or witnessing the specified detainee behaviour. 34The appellant's proposition, reduced to its essentials, was that, not having identified the particular, as opposed to a general, risk that its acts or omissions were alleged to have created in order that the appellant could know or understand what charges it had to meet and enable it to deploy a statutory defence, the charges were invalid. Further, that absent an identification of the particular risk, an essential legal ingredient of the charges, the charges could not be cured. 35It is to be observed that the appellant's challenge to the framing of the charges appears to have been prompted by the judgment of the High Court in Kirk . Relevantly, the plurality in Kirk pointed out, at [13], that it is necessary for a charge in criminal proceedings, including occupational health and safety proceedings where a penalty can be imposed, for the prosecutor to identify the "matter" to be remedied to enable an order under the relevant provisions to be made. At [14] it was said: [14] A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act (s 48). But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. 36The plurality stated that specification of the charge is critical because it affects the defence that might be pleaded by the defendant: see Kirk at [26]. 37It was further stated at [16]-[18]: [16] The scheme of this legislation stood apart from other legislation of this type in Australia. In other States the employer's obligation, to take measures for the health and safety of employees and others, was limited to the taking of such measures as were practicable. This Court has held that such a provision places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable . A feature of the legislation here in question is that where an employer is charged with an act or omission which is a contravention of s 15 or s 16, it will be necessary for the employer to establish one of the defences available under s 53 in order to avoid conviction. Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence. [17] Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply "with the provision of this Act". It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer. [18] The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. The defence allows that not all measures which may have guaranteed against the risk in question eventuating have to be taken. The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment. An understanding of the scheme of Pts 3 and 6 precludes acceptance of the appellants' contention that it is necessary to imply the common law standard of care in ss 15(1) and 16(1). The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53. Section 53 is the predecessor provision in the Occupational Health and Safety Act 1983 to s 28 in the 2000 OHS Act. 38At [32]-[33] in Kirk , a part of the judgment particularly relied upon by the appellant, it was stated: [32] ... A further proposition, said to arise from the cases, was that it was necessary to establish a causal connection between a failure on the part of the employer and the risk to the health, safety and welfare of employees. This causal connection, between a general class of risk and something which the employer could have done, was treated as a matter of central importance in his Honour's reasons. The step which was not undertaken was to identify the measure which the employer should have taken as relevant to the offence. To the contrary, the cases are said to establish the proposition that a prosecutor is not required to demonstrate that particular measures should have been taken. [33] The propositions listed by his Honour appear to assume that the employer's obligation, to guarantee against risks in the workplace, remains in existence at all times and that the question of an employer's liability is to be determined by reference to it. ... 39The appellant referred to dicta in State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [26] relied upon by the respondent in its contention as to what was the relevant risk to be addressed by the Court: ... careful attention must be paid to the correct identification of the risk the subject of the charges ... it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation. 40The appellant submitted that the decision in Kirk has changed the focus referred to in Covi from a general class of risk to the consideration of whether there is an identifiable risk and specified measures to address that risk pleaded in a charge. It is to that risk and the specified measures that will establish a contravention of the OHS Act subject to any defence that may be raised in relation to the practicability or otherwise of the measures relied upon by the prosecutor. The approach taken in Kirk, it was submitted, redirects attention to an identifiable risk and the measures relied on to address that risk. 41It was submitted that the risk pleaded in Matters 1390 and 1391 was a general class of risk. Given that Kirk determined that reliance on a general class of risk was an error, it was submitted the charges were defective. 42In contending that the risk pleaded was a general class of risk, the appellant referred to [14] of the liability judgment where her Honour stated: [14] There was also no issue between the parties that exposing the defendant's employees to acts of violence, threats of violence and other threatening behaviour at work, could result in injury and that the defendant had an obligation under s 8(1) of the OHS Act, to ensure that this did not occur. Various Government policies in evidence, as well as policies, systems and procedures devised by the defendant, applicable at Putland, were directed to ensuring that DET employees were protected from sustaining an injury from exposure to such risks. 43The appellant submitted there was no agreement by the appellant that the risk identified at [14] was the risk identified in paragraph (a) of the charges it had to meet. Further, that the "policies, systems and procedures devised by the defendant, applicable at Putland" relied on by her Honour as constituting the risk referred to in [14] were risks of a general nature. 44We accept that the risks referred to in the appellant's policies, systems and procedures, such as those described in DET's "Guide to Occupational health safety and injury management, 2000", the Hazard Identification and Risk Management Strategy, issued by the Premier's Department in September 2003, the "Memorandum of Understanding Between the Departments of Juvenile Justice and Education and Training, 2002", the 2000 "Management of serious incidents Guideline" and the 2003 Putland Management Plan, were risks of a general nature. However, what Schmidt J stated at [14] was a general proposition and was not meant to reflect, in precise terms, her Honour's understanding of the risk pleaded in Matters 1390 and 1391. We referred earlier to those parts of the liability judgment that dealt specifically with the risk in these two matters. 45Nevertheless, it is undoubtedly the case that the risk must be identified, although, as noted in Kirk , "in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed" (at [14]). Covi merely cautioned against focussing too much attention on the actual incident or accident in finding the "identifiable risk". As Covi points out, to do so will, in all likelihood, lead to an artificial confinement of the risk under consideration. In the Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 the Full Bench stated: [39] The appellant contended that for each charge the respondent pleaded a general risk of aggressive and/or violent assault by students and a specific risk to Mrs Griffiths on 9 February 1999. We do not consider that was so. The respondent pleaded a risk of aggressive and/or violent assault by students but in relation to what occurred on 9 February no separate risk was pleaded; what was alleged was a particular incident involving an assault, that is to say, a materialisation of the risk pleaded. [40] We consider that the practice of categorising risks into "general" and "specific" or, as the respondent often did in its submissions at first instance, "potential" and "actual", may in some cases lead to confusion regarding just what is the relevant risk. That has been so in the present appeal where much energy has been expended by the appellant in arguing about which risk his Honour was addressing, ultimately for no good purpose. It is clear that Walton J was alert to the need to properly identify the relevant risk and did so. 46In any prosecution for a contravention of the general duties under the OHS Act, it will be necessary for the prosecutor to prove beyond reasonable doubt that the acts or omissions of the defendant had a causal connection to the risk to health and safety that is said to give rise to the prosecution. Section 8(1) of the OHS Act is concerned not with an actual injury; there may be no injury yet a defendant may still be prosecuted because employees were placed at risk of injury because of the employer's acts or omissions. Kirk did not change this basic construct. 47Given that the prosecution is required to prove as an essential element of a charge under s 8(1) that there was a risk to the health, safety or welfare of a defendant's employees, it follows that the charge should identify the risk. However, as it was said in Kirk the obligation on the employer is not to "establish that every possible risk was obviated", which is what an employer might face if the pleading is only in relation to a general class of risk, but rather the pleading must show an "identifiable risk". 48Provided the pleadings show such a risk, expressly or by necessary implication, the charge will not be invalid or defective. We do not see any obligation on the prosecution to go beyond a short statement identifying the risk. For example, in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 (" John Holland (CA") the Court of Appeal was satisfied (see [52] per Spigelman CJ) with the description in the Applications for Order that "There was a risk of being struck by falling rock and/or Tunnel Collapse" (we note that special leave to appeal to the High Court has been sought by John Holland). Any additional information could be provided by way of a request seeking further particulars or by the court ordering such further particulars. 49Although no objection was ever taken by the defendants in Kirk to the pleaded risk and no further particulars were sought , the High Court held that statements of offence did not plead an identifiable risk, but rather the general risks and hazards in relation to the operation of the ATV on the farm. In contrast, in each of the Applications for Order in Matters 1390 and 1391, there is an identifiable risk to the employees' health, safety and welfare. In our opinion, the appellant could not, in the present proceedings, have been under any misapprehension as to what was the specific risk in Matters 1390 and 1391. Even if it could be contended paragraph (a), in terms, lacked specificity, the charge has to be read as a whole. As Kirk stated, "in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed", thereby implying that even if the risk is not expressly stated, it may be otherwise identified from what appears in the charge. See John Holland (CA) at [56] per Spigelman CJ, Beazley and Giles JJA agreeing at [123] and [124] respectively. See also Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [125] and [130], Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 at [27]-[36] and Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 at [47], [71] and [75] as to implying elements of an offence from the Application for Order. 50Reading the charges as a whole, we note the following: a. the risk pleaded was the risk to specified employees; for 10 March 2004 "in particular TAS Mary" and for 15 March 2004 "in particular TAS Mary and TAS Su"; b. there was an identifiable risk in paragraph (a) by implication from the pleaded measures or steps in paragraph (b). Both the 10 March 2004 TD occupational violence charge and the 15 March 2004 BH occupational violence charge, in their specification of the steps or measures in paragraph (b), clearly imply the risk which is being addressed. For example: (i) Failing to prevent detainee TD [or BH] from being in the class. (ii) Failing to have a Juvenile Justice Officer present in the class room to support and monitor students, classes and program delivery staff. (iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee TD [or BH], which required consultation with the teacher and the TAS allocated to the class, provision of the history of TD [or BH], assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. (iv) Failing to provide adequate information in relation to the history or incidents of actual violence, threatened violence, anti social behaviour and/or psychological information of detainee TD [or BH] and incident prevention or reduction strategies. (v) Failure to have adequate emergency communication equipment and systems for employees to summons help (this was in the 10 March 2004 charge only and there is no doubt this was referring to help in the class of TAS Mary ); c. there was an identifiable risk in particular (c) - the materialisation or manifestation of the risk; for 10 March 2004: "The psychological injuries to TAS Mary were a manifestation of the risk", and for 15 March 2004: "The psychological injuries to TAS Mary and TAS Su were a manifestation of the risk". 51Thus, it is clear from the Application for Order in Matter 1391 that the risk pleaded was a risk on 10 March 2004 of TAS Mary suffering psychological injury due to being subject to or witnessing actual violence or anti social behaviour by TD, being subject to or witnessing threatened violence or anti social behaviour by TD, or having to control or restrain TD involved in violence or anti social behaviour. 52The Application did not specify that the violence or anti social behaviour was TD's conduct towards teacher Ron. However, we do not understand it to be a requirement that the description of a risk in a charge must descend to the degree of particularity said to be required by the appellant in this case: see, for example, John Holland (CA) at [52]. In any event, applying commonsense, and understanding that the charge included reference to violence or anti social behaviour from detainee to teacher, the appellant knew from its own business records and the affidavit of the prosecutor supporting the Application for Order that on 10 March 2004, TAS Mary was in the class being taught by teacher Ron and the records and affidavit showed that the threatened violence or anti social behaviour was being directed by TD to teacher Ron. Moreover, the appellant's case at first instance was that all of the detainees posed a high risk at all times and were dangerous. Indeed, it was submitted that the evidence of the Principal, Kate W, described detainees' demonstrated violent and anti social behaviour and that "[t]he risk (both general and specific) arising from violent or anti-social behaviour by any detainees was a known risk to the Defendant and for which it had an extensive and integrated risk management system in place ..." 53If there were any doubt on the appellant's part about any aspect of the pleaded risk it was open to seek further and better particulars and if that request was not met, to seek an order from the primary judge. The appellant sought further particulars regarding the risk by asking whether the allegation that a TAS was at risk due to "i) being subject to or witnessing actual violence or anti social behaviour by any detainee" or "ii) being subject to or witnessing threatened violence or anti social behaviour" or "iii) having to control or restrain any detainee involved in violence or anti social behaviour", was pleaded in the alternative. The answer was: "Any one or combination". The appellant also asked the respondent to specify what was meant by: "anti social behaviour of a detainee" and "control or restrain a detainee" in relation to a TAS. The answer provided was: "The expressions have their ordinary English meaning." Having received those answers, the appellant made no further request for particulars, made no application to the primary judge for further particulars regarding the nature of the risk and made no complaint at the trial of being uninformed about the nature of the risk in Matter 1391. 54In relation to Matter 1390, it is apparent from the Application for Order that the risk pleaded was a risk on 15 March 2004 of TAS Mary and TAS Su suffering psychological injury due to being subject to or witnessing actual violence or anti social behaviour by BH, being subject to or witnessing threatened violence or anti social behaviour by BH, or having to control or restrain BH involved in violence or anti social behaviour. 55The Application for Order in Matter 1390 does not specify that the violence or anti social behaviour was directed at teacher Ron and to the juvenile justice officers in the classroom and the quadrangle, but once again we do not consider there was a requirement to do so and, in any event, these details could have been obtained by a request for further and better particulars if it was unclear to the appellant. The appellant did not do so, because it was apparent from the appellant's business records, a number of which were referred to by Schmidt J in her liability judgment (see, for example, the behaviour reports and Ms Koussa's reports) and the brief of evidence served on the appellant, which persons were subjected to the violence or anti social behaviour and in what circumstances. Furthermore, in the affidavits of the prosecutor filed in support of the Applications for Order, the details of what occurred on 10 and 15 March 2004 involving TD, BH, teacher Ron, TAS Mary and TAS Su are set out. The respondent was entitled to rely on those affidavits and the appellant to take notice of what was there set out in arriving at its understanding of the respondent's case: Rockdale Beef at [126] per Basten JA. 56We find that there was no defect in the pleading as to the identification of the risk in Matters 1390 and 1391. Consequently, no question arises as to curing any defect.
Risk pleaded in paragraph (a) of Matter 1392 of 2006 57The risk pleaded in paragraph (a) of Matter 1392, the "psychologically unsafe" charge, was that: a) There was an actual risk of the absence of or inadequate management support increasing the potential danger of an individual teacher's aide special ("TAS") developing occupational stress, namely, post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders. 58The risk was alleged to have arisen in respect of TAS Mary and TAS Su. We have already cited what occurred on 10 March, which was an incident affecting TAS Mary. What occurred on 15 March and which was the subject of the charge in Matter 1390, was alleged to have given rise to a risk to both TAS Mary and TAS Su. Then on 17 March, TAS Su witnessed a fight between two detainees in a classroom. It was alleged TAS Su was "extremely distressed" over that incident. The charge also referred to a bomb scare, which occurred in the second week of March 2004, and it was alleged that because the Principal never sought the views of TAS Su regarding the bomb scare, the classroom fight on 17 March 2004 or the escape on 10 March 2004, TAS Su was put at risk in the manner pleaded in paragraph (a) (see paragraph (b)(vi)). TAS Mary was alleged to have been put at risk because of the failures pleaded in paragraph (b)(ii)-(v). 59Schmidt J dealt with particular (a) of the charge in Matter 1392 at [714]-[724] of the liability judgment. Her Honour found that it had been "established to the requisite degree" (at [715]). However, the appellant submitted that under the terms of the risk pleaded, the appellant was put in a position of having to prove it had discharged its duty of care to its employees TAS Mary and TAS Su by ensuring that they were not exposed to "a risk of ... increasing the potential danger of ... developing ... occupational stress". In other words, that the risk pleaded was not a direct risk of sustaining a psychological injury, but rather an indirect risk of "chance" or "potential". Such a risk, it was submitted, was too remote to be known to the law; it relied on a notion of degrees of risk i.e., "increasing the potential danger" of a TAS " developing" such an injury. 60It was further submitted that the use of the word " inadequate" in paragraph (a) "thrusts one into the realm of the unquantifiable and the unknown". Further, that the deficiency of the management support was not identified. The actual meaning to be attached to "management support", which was variously described as "leadership" and "consultation", compounded this problem . These terms, it was submitted, were not descriptions that had a single or universal meaning. The risk alleged to arise from an "absence of" or "inadequate management support" did not specify what support should have been provided; who was at risk; who was to provide the support; or when the support was to be provided. 61The appellant also took issue with the term "occupational stress", contending that: This psychological condition was alleged to encompass the conditions of ' post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders '. Each of those conditions present differently in terms of severity. Further, the causative factors that can be attributed to each condition vary considerably. Yet each condition is pleaded as a sub-group of the primary psychological injury - 'occupational stress'. 62Consequently, it was contended that the risk identified in paragraph (a) was uncertain and of too general a nature to properly inform the appellant of the risk that was created or contributed to by its acts and omissions said to constitute the contravention of s 8(1). 63For the reasons we earlier expressed, in identifying the risk it is necessary to read the Application for Order as a whole. In that respect, firstly, the risk pleaded was the risk to specified employees, "in particular TAS Mary and TAS Su". Secondly, the risk was said to be an actual risk of a TAS developing occupational stress (paragraph (a)). Thirdly, from the particulars in paragraph (b) it may be implied that the "inadequate management support" referred to in paragraph (a) consisted of the failures on the part of the Principal described in those particulars (noting that particular (i) and (vii) were not made out). Fourthly, paragraph (c) identified the allegation that the risk manifested itself in the psychological injuries to TAS Mary and TAS Su. 64We are of the opinion that paragraph (a) was not well drafted because it referred to "an actual risk of the absence of or inadequate management support" and such risk "increasing the potential danger of an individual teacher's aide special ... developing occupational stress ..." The respondent, in his opening submissions before the primary judge, indicated that the words "the potential danger of" were surplusage and that the paragraph should be understood to say: "There was an actual risk of the absence of or inadequate management support increasing an individual teacher's aide special ("TAS") developing occupational stress ..." 65The wording of paragraph (a) remained clumsy, but its meaning is plain enough: that in the absence of, or inadequate, management support, there was an increased risk of TAS Mary and TAS Su developing occupational stress. 66It could not be doubted that the risk to health and safety may increase or become more serious as a consequence of an employer's acts or omissions: see O'Sullivan at [45]-[46]. Moreover, it does not appear that the appellant misunderstood the reference to increased risk and no complaint was made about it. Indeed, Question 9 in the appellant's letter of 30 August 2006 seeking further and better particulars, suggests that the appellant well understood what was alleged when it asked to confirm: That the alleged 'psychologically unsafe place of work' of the Defendant created the 'increased risk' of developing 'occupational stress' for the specified period. In answering the query the respondent referred the appellant to O'Sullivan at [41]-[50]. 67The appellant also asked in Question 2: That the risk pleaded is the 'actual risk' of an individual teacher's aide special (TAS) being at 'an increased risk of developing occupational stress' as a result of the absence of management support and/or inadequate management support. 68Whilst the respondent answered unhelpfully, (" The risk is in further particular (a)") and had to amend the particular in his opening, the basis upon which the evidentiary cases were conducted at first instance was that in the absence of, or inadequate, management support, there was an increased risk of TAS Mary and TAS Su developing occupational stress. 69Notwithstanding the amendment made to the wording of paragraph (a) by the respondent in his opening submission, the amendment appears to have been overlooked by Schmidt J, because her Honour found that the risk that had been made out was the risk that was originally pleaded: see [626]-[627] and [715] (this is but one of a number of problems arising from the formulation of the charge in Matter 1392). 70Our view about this is that Schmidt J mistakenly overlooked the amendment made to the particular and proceeded to construe it in the manner we have suggested and in the way the evidentiary cases were conducted. In other words, her Honour treated the words "the potential danger of" as surplusage or irrelevant. Her Honour acknowledged that it was the prosecutor's case that "it had been demonstrated that the risk of psychological injury being sustained by staff such as TAS Mary and TAS Su, was increased by the absence of, or inadequate, management support being provided to employees at Putland, to help them cope with what they were being exposed to, when working with detainees in class": see [668]. 71As to the complaint regarding the word "inadequate", the appellant makes no mention of this in the request for further and better particulars on 30 August 2006 and no application was made to have the term clarified. "Inadequate" is an ordinary English word meaning "not adequate" or not "equal to the requirement or occasion; fully sufficient; suitable; or fit". "Inadequate management support" in paragraph (a) is to be construed in conjunction with the particulars in paragraph (b). Moreover, we note that in John Holland (CA), Spigelman CJ accepted the proposition that the generality of words such as "adequate" and "sufficient" is a matter for further particularisation: "Any such inexplicitness does not impinge upon the validity of the Application as an instrument conferring jurisdiction on the Industrial Court": at [118]. See also [77]-[79]. 72If there is any doubt about the appellant being afforded procedural fairness, in addition to the foregoing considerations, in determining whether paragraph (a) identified the risk in such a way that the appellant understood the case it was required to meet, we are entitled to have regard to the following: a. the affidavit by the prosecutor in support of the Application for Order set out what was deposed to be the factual circumstances underpinning the charge. The respondent was entitled to rely on that affidavit in having the nature of its case understood by the appellant: Rockdale Beef at [126] per Basten JA; b. the service of the prosecution brief included the 4 May 2006 expert report of Ms Martha Knox Haly, which confirmed the nature of the case the appellant was called upon to meet and told the appellant the mode by which the case was to be proved against it. In that report Ms Knox Haly provided a definition of occupational stress and addressed the link between social support and its ability to mitigate the effects of occupational stress. Ms Knox Haly's report constituted the basis for the charges that were laid against the appellant. The report set out what ultimately constituted the failures relied upon by the respondent in paragraph (b) of the particulars and Ms Knox Haly provided an explanation in respect of each of them as to why she was of the opinion there was a failure to provide adequate management support in the form of social support, a term which she defined in the report; c. the 16 April 2007 opening of the respondent's case included reliance upon the appellant's business records that were always known to the appellant and its legal advisors. The respondent provided specific references to these records. The business records dealt extensively with: the need for workplace consultation in the context of achieving and maintaining a safe workplace and improving local decision-making about work place health and safety; the responsibility of a Principal for undertaking workplace consultation to ensure that staff are provided with opportunities to consult for the purposes of occupational health and safety; to ensure strategies are in place to regularly review and monitor health and safety in the workplace; identification, prevention and management of the causes of occupational stress; and the need to provide management support to affected staff being a critical element of an effective risk management strategy. In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 Spigelman CJ accepted that further particulars of a charge may be provided by the prosecutor in opening submissions: see Thiess at [10] and [38]; d. the 13 May 2007 expert report of Ms Knox Haly, where she considered a number of questions put by the respondent's solicitors regarding DET's "Occupational health, safety & injury management - a guide for the principal or manager", 1999, with May 2000 "Foreword" and "Guidelines for Schools and TAFE Colleges and Campuses - Managing Serious Incidents 2000", which Ms Knox Haly regarded as being in alignment with the views she expressed in her report of 4 May 2006, provided to the appellant in the brief of evidence; e. the appellant's concession that there was no issue between the parties that TAS Mary and TAS Su suffered a psychological injury after the events of March 2004. The appellant said "... we have not put this issue in our submissions, the fact that these persons did suffer injury..." 73A matter that the appellant regarded as critical in its attack regarding the risk in Matter 1392, was that the risk relied on by her Honour in finding that it was made out was the risk of "repeated exposure" to violence, which was different to the risk pleaded. The appellant submitted: By taking 'repeated exposure' into account in the determination of the risk arising from the 'absence of management support' and in finding it was causative of the injuries to TAS Mary and TAS Su, her Honour has misconstrued the risk and acts and omissions pleaded in the charge and as a result, erred in finding the appellant guilty of an offence against s 8(1). Further, it was submitted that "the risk of 'cumulative exposure' as formulated in the judgment on liability was not pleaded in any of the charges" and that "[t]he Appellant at no stage regarded it had to meet a case that 'cumulative stress' or 'cumulative (repeated) exposure' fell within the risks pleaded in the charges." 74For these contentions the appellant referred to [14] of her Honour's liability judgment, which we earlier quoted, as well as other paragraphs of the liability judgment, including the following: [296] On the evidence, the injuries TAS Su and TAS Mary each suffered were a manifestation of a known risk, namely the risk of psychological injury, as the result of exposure to violence and threats of violence at this workplace. Jayne M, the Assistant Manager of Cobham agreed that it was well known that repeated exposure to actual or threatened violence at work, could have a cumulative impact on the psychological health of staff, which could contribute to a psychological injury being suffered. The expert evidence supported that view. That risk had manifested at Putland before March 2004, in relation to other staff. Teacher Ron also suffered a psychological injury, in March 2004, as the result of the events of 10 and 15 March. ... [368] On the evidence, there can be no question that staff working at Putland were at constant risk of injury from violent young men , frustrated by their incarceration. That risk had manifested itself at Putland in various ways over the years preceding the events which led to these charges . ... [398] TAS Mary and teacher Ron were working in a General Education class which TD attended. On the case advanced by the defendant, there was no issue that employees at Putland were repeatedly subjected to and witnessed actual and threatened violence and other antisocial behaviour by detainees, during their face to face contact with detainees... ... [485] Jayne M's evidence was that it was known that staff at Putland could be exposed to actual or threatened violence on a number of occasions . That was certainly TAS Mary's experience, before 10 March 2004. Jayne M also said that in her own experience, this could have a cumulative impact on the psychological health of such a staff member and that in the spectrum of minor to more serious violent incidents, it could even be an incident that was relatively minor, that was the straw that broke the camel's back, so far as sustaining an injury was concerned . The expert evidence supported that view, as did various of the defendant's policies, I have already dealt with. ... [560] It was known to the defendant that repeated exposure to such incidents put its staff at risk of injury . Despite this, paper safety systems designed to protect its staff from such injury, were not in operation as I have explained. It follows that there can simply be no question that the defendant's acts and omissions were causally connected to the risk to which TAS Mary and TAS Su were exposed on 15 March. ... [641] ... It was common ground amongst the experts and contemplated by the defendant's own policies, that there was a risk of psychological injury being sustained, when employees were repeatedly exposed to acts of violence and threatened violence and other anti-social behaviour by detainees at Putland . The absence of adequate social support did not itself give rise to the risk of injury here in question. Social support was a way in which the defendant could control such a risk, if it could not be eliminated, that risk being one not created by the defendant itself. [642] It follows that if it is found that the necessary social support was not being provided, with the result that when the risk in question materialised, an injury resulted, the defendant's failure to have in place an available way of controlling the risk, will establish the offence. The fact that the risk materialised with the result that an injury was sustained by some employees exposed to a particular critical incident, but not others, is not evidence that the risk did not exist, or that it did not manifest, or that it was controlled. Rather, it reflects the evidence that those employed in a working environment such as this, where they are repeatedly exposed to such incidents, may be injured by such repeated exposure and that the precise incident which will result in the injury manifesting in a particular individual, is not predictable - 'the straw that breaks the camel's back' analogy used by various of the witnesses, or what makes the glass 'finally overflow', used by others. ... [797] The defendant's policies and the evidence of its employees and those of the DJJ established that it had, in fact, foreseen that those it employed at Putland were at risk of psychological injury, because they were repeatedly exposed at work to violence and the threat of violence from detainees. The defendant had sought to implement practices designed to protect its employees from such risks materialising. It had also designed paper policies to protect its employees from such risks, which it could not entirely exclude, given the access to Putland which it was obliged to give detainees. ... [804] It was also known to the defendant that before March 2004, TAS Mary had been involved in other incidents with detainees at Putland, during which she had already been exposed to such risks. TAS Mary had suffered a slight physical injury, as a result, on one such occasion. In 2003, she had sought medical attention after one such serious incident, because she experienced difficulty in sleeping afterwards, although she did not make the defendant aware of this. Had the defendant's paper systems been in operation, the defendant ought to have been aware of this. It was not. Nevertheless, that it was actually known that TAS Mary was at risk of psychological injury in March 2004 cannot be doubted on the evidence. It was also known to the defendant that repeated exposure to such behaviour could result in an injury being sustained by further exposure, even from a relatively minor incident. (emphasis added) 75One has to consider the context of each of the foregoing paragraphs. What was stated at [296] of the liability judgment was in the context of her Honour examining the question of TAS Su's particular vulnerability. In the same context her Honour stated: [290] I take the view, as I have said, that what the precise nature of the illnesses which TAS Mary and TAS Su suffered was, need not be determined, there finally being no real question on the evidence, that there was a psychological injury in each case, as the result of work factors in the period of the charge , albeit some disagreement as to its nature. (emphasis added) 76What was said at [368] of the liability judgment was in the context of the causal connection between the appellant's acts or omissions and the risk in Matter 1391. Paragraph [485] was in the context of her Honour's consideration of particular (c) in Matter 1391. In [560] Schmidt J was concerned with the causal connection in Matter 1390. Paragraphs [641] and [642] appear under the heading, "The absence of social support producing a psychological injury" in her Honour's consideration of that part of the liability judgment dealing with Matter 1392. Paragraph [797] was in that part of her Honour's liability judgment dealing with the statutory defences and the issue of reasonable foreseeability. Similarly so in respect of [804], which was concerned with Matter 1391, not 1392. 77It must be accepted that the charge in Matter 1392 was limited to the period between 10 and 17 March 2004. In that period it was alleged that the appellant failed, by a number of omissions particularised in paragraph (b) of the charge, to ensure safety in that it allowed there to be a psychologically unsafe place of work. The risk that was alleged to have been caused by the appellant's failures that occurred in the charge period was that in the absence of or inadequate management support, there was an increased risk of TAS Mary and TAS Su developing occupational stress. 78Further, it was not pleaded that the risk arose from the cumulative effect of repeated exposure to acts of violence where those acts of violence preceded or post-dated the period identified in the charge. Moreover, it is clear from the first instance proceedings that at no stage did the appellant regard itself as having to meet a case that "cumulative stress" or "repeated exposure" fell within the risk pleaded in the charge. 79The question is what to make of her Honour's references to "repeated acts of violence" and the cumulative effect of exposure to violence in the liability judgment. It will have been seen from the passages quoted above from the liability judgment that the references were mainly in the context of it being known by the appellant that exposure to such acts placed an employee at risk of psychological injury. It will also have been seen that the majority of paragraphs relied on by the appellant do not relate specifically to Matter 1392, although a number of her Honour's observations about exposure to acts of violence may be construed to apply to all three charges. 80It was necessary for her Honour to find that the risk in paragraph (a) of the charge in Matter 1392 had been made out. That is, in the absence of, or inadequate, management support, there was an increased risk of TAS Mary and TAS Su developing occupational stress. It may be accepted that Schmidt J explicitly found the risk had been made out: see [715]. 81The appellant, however, referred particularly to what her Honour stated at [641]-[642] of the liability judgment, which we quoted earlier. In those paragraphs her Honour seemed to be suggesting that the "risk in question" was "a risk of psychological injury being sustained, when employees were repeatedly exposed to acts of violence and threatened violence and other anti-social behaviour by detainees at Putland." Her Honour also stated at [641]: The absence of adequate social support did not itself give rise to the risk of injury here in question. Social support was a way in which the defendant could control such a risk, if it could not be eliminated, that risk being one not created by the defendant itself. 82That statement is antithetical to what is pleaded, namely, the absence of or inadequate social support caused the pleaded risk. It is thus difficult to reconcile what her Honour said at [641]-[642] with her Honour's explicit finding that the risk as pleaded had been made out. 83Another feature of her Honour's judgment in relation to Matter 1392 that is not easy to reconcile is her Honour's references to "cumulative stress" and incidents occurring prior to 10 March 2004 said to have affected TAS Mary and TAS Su psychologically, with her Honour's references to exposure to risks in the charge period, which led her to find that the charge had been made out. In other words, the period of the charge was between 10 March and 17 March 2004 and whilst her Honour found that TAS Mary and TAS Su had been exposed to acts of violence in the charge period, her Honour also relied on the cumulative effect of exposure to acts and threats of violence that occurred both during and prior to the charge period, which her Honour found had affected TAS Mary and TAS Su. It was this cumulative effect that her Honour appeared to take into account in considering the question of occupational stress. 84As we have said, the risk in Matter 1392 was that in the absence of, or inadequate, management support, there was an increased risk of TAS Mary and TAS Su developing occupational stress. The evidence was that psychological injuries could be the cumulative effect of exposure to more than one incident. It was Dr Brown's evidence that stresses are cumulative, so that the degree of stress that someone is under is cumulative, "so if somebody has been stressed by a particular thing in the past then if that occurs again that will be stressful and the reaction may be somewhat more than it was previously": see [269]. 85In our opinion, Schmidt J was entitled to have regard to evidence regarding the stressors TAS Mary and TAS Su may have been subjected to during their employment at Putland in determining the nature of the risk that arose in the charge period. Her Honour did not determine that the increased risk of developing occupational stress was cumulative exposure to violent incidents. Exposure to acts of violence prior to and during the charge period meant that TAS Mary and TAS Su might have had a particular mental state prior to the charge period . Her Honour was entitled to understand what that mental state was and what caused it, in assessing whether or not, in the charge period, in the absence of, or inadequate, management support, there was an increased risk of TAS Mary and TAS Su developing occupational stress. 86For example, at [739] the primary judge referred to an evacuation of the School on 5 March 2004, when a bomb scare occurred. Her Honour recognised explicitly, "[t]his was outside the period of the charge". Schmidt J, nevertheless, stated the bomb scare incident was "relevant to TAS Su's response to the events in the period of the charge" (Schmidt J accepted that TAS Su was concerned by the fact that there had been a bomb scare. However, her Honour was unable to conclude that the way in which this situation was dealt with by the Principal, was likely to have given rise to the risk of psychological injury for TAS Su (at [740])). 87Schmidt J was, with respect, not always careful to distinguish between the ever present "high" risk that detainees presented to staff at Putland and the pleaded risk in the charge, which had the effect of creating some confusion in attempting to construe her Honour's reasons for judgment. For example, see [646]. 88However, it is apparent from her Honour's liability judgment that the risk her Honour found to have been made out was the risk that arose as a consequence of the appellant's failures between 10 March and 17 March 2004. 89Nowhere did her Honour make a finding that the risk in Matter 1392 was the risk of exposure to repeated acts of violence or the risk of cumulative stress outside the charge period. On the contrary, in respect of that Matter, her Honour stated: [633] Again, on the evidence there is no question that the risks to which TAS Mary and TAS Su were exposed between 10 - 17 March , which put staff safety at risk, occurred while they were at work. ... [648] Dr Lamarque's evidence was that on his understanding, TAS Su had functioned well and coped at work until March 2004. She then had concerns about safety issues and was not comfortable, but it was when she witnessed the assault on 17 March, that she finally had a very strong reaction which developed into post traumatic stress disorder. That view was entirely consistent with those of the Principal and finally of Dr Brown and Professor Tennant in cross examination, as to how her illness could be explained, given her experiences at work. The proper safety systems designed to detect and prevent psychological injury to those becoming increasingly at risk of such injury, was simply not operating at Putland. ... [760] For reasons which I have explained, there can be no doubt that TAS Mary and TAS Su each suffered a psychological injury, as the result of their experiences at work at the relevant time . ... (emphasis added) After quoting paragraph (a) of the charge in Matter 1392, Schmidt J stated: [715] I am satisfied on the evidence of both the events in question in the period of the charge and the expert evidence, to which I have referred, that this particular was established to the requisite degree. (emphasis added) 90Further, the appellant was not caught by surprise in relation to exposure to acts of violence prior to the charge period and the effects of this on TAS Mary and TAS Su. The appellant knew from the outset that the respondent's case was to include, and did ultimately include, reports from medico-legal practitioners that addressed the risk of injury from repeated exposure to acts of violence. 91An issue arose in the appeal proceedings regarding whether the Full Bench was entitled to have regard to affidavits sworn by TAS Mary and TAS Su. It would appear that the respondent was seeking to use the material in the affidavits to bolster his case that the appellant knew and understood the nature of the respondent's reliance on exposure to acts of violence prior to the charge period and the effects of this on TAS Mary and TAS Su. The appellant contended that the affidavit material could not be relied upon as putting it on notice that the pleaded risk had been amended. The parties made oral submissions to the Full Bench on 14 October 2010 regarding this issue. The Full Bench has found it unnecessary to have regard to the affidavits. 92Whilst the particular relating to the risk in Matter 1392 was poorly drafted, we find that the charge was not invalid for any reason related to the manner in which the risk was pleaded. However, for other reasons that we shall later explain, the charge in this Matter was not made out.
Did the acts/omissions particularised in paragraph (b) of Matters 1390 and 1391 constitute "measures" that found an offence against s 8(1) of the OHS Act? 93Paragraph (b) in each of the three charges set out the alleged failures by the appellant to ensure safety. The appellant submitted, however, that in each charge paragraph (b) failed to identify the measures relied upon by a prosecutor to obviate the pleaded risk as required by Kirk . As such, it was submitted, the charges failed to specify an offence against s 8(1) of the OHS Act, in the same manner found in relation to the particulars pleaded in Kirk . In the alternative, it was contended that if the particulars provided in paragraph (b) of each charge were held to constitute measures, the identification of the measures was not sufficient to properly allow the defences under s 28 to be considered and raised.
The relevant law 94Before addressing each of the particulars, it is convenient at this point to consider in more detail the relevant law relating to pleadings. 95An Application for Order under s 246(1)(a) of the Criminal Procedure Act 1986 must state the nature of the offence: John Holland (CA) at [45]-[47]. This reflects the common law requirement that an information is required to inform the justices of the nature of the offence. The information, however, is also required to inform the defendant of the manner in which it is alleged the offence was committed. In John L Pty Limited v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 it was said at 519: The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" ( Ex parte Lovell; Re Buckley at 166). 96In Kirk , the plurality confirmed this approach at [26]: [26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge ( Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J; [1937] HCA 77.) In John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42. it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed ( John L at 519). In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet ( John L at 519). The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence" ( John L at 520). These facts need not be as extensive as those which a defendant might obtain on an application for particulars ( De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292 referred to in John L at 520). In Johnson v Miller , Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions" (at 486). McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged" (at 501; see also Smith Moody [1903] 1 KB 56 at 60). 97The appellant in the present case did not make it clear whether it was contending both requirements (informing the court of the identity of the offence and providing the accused with the substance of the charge which he is called upon to meet) referred to in John L and Kirk had not been met. We think it was only the latter because the appellant's complaint was essentially that the information in the Applications for Order was not sufficient to enable the appellant to prepare its defence. In other words, it was denied procedural fairness. 98In Kirk , the plurality said at [14]: Sections 15 and 16 [of the 1983 OHS Act] are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. 99The plurality seems to have regarded the measure to be taken to prevent a risk arising, as synonymous with the act or omission giving rise to the offence. Thus, if the charge was that an employer failed to ensure a guard was not removed from a machine, this might constitute an act or omission giving rise to an offence. Whilst the charge might not explicitly say that the measure the employer was required to take to prevent a risk arising was to ensure the guard was not removed, it is plainly implicit what the preventative measure was. 100On the other hand, if the charge was that the employer failed to provide information, instruction and training as may be necessary to ensure the health and safety at work of its employees in relation to the operation of a machine (this is essentially the same as particular ii of the s 15 charge in Kirk : see Kirk at [22]), it is apparent from the plurality's decision in Kirk that such a formulation is to be regarded as deficient because it is not sufficiently specific in identifying the act or omission giving rise to the offence (that is, it is to be regarded as not providing the defendant with sufficient information as to the charge he is required to meet) nor is it sufficiently specific as to the measures the defendant should have taken to prevent the risk arising. In this latter respect, as it is made clear in Kirk , in order for a defendant to prepare a defence that it was not reasonably practicable to comply with the provision with which he has been charged, the defendant is entitled to know, in the example cited above, what information, instruction or training it is alleged he should have provided to avoid the identifiable risk: see Kirk at [28]. 101It seems to us that if a particular of a charge is framed in terms of an employer failing to provide information, instruction and training as may be necessary to ensure the health and safety at work of its employees in relation to the operation of a machine that will not automatically render the charge invalid. This is because there may be other acts or omissions relied upon by the prosecutor that will support the charge: see The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14 at [53] and the cases referred to therein. However, putting that circumstance aside, in the light of Kirk it would seem, subject to what we later say, that a charge framed in the terms of our example represents a failure to identify an essential element of the offence, namely, the manner in which the offence is alleged to have occurred and would, therefore, be invalid: see Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 at [42] and the reference therein to John L at 520-521 per Mason CJ, Deane and Dawson JJ. 102However, a nice question arises as to the effect of s 16(2) of the Criminal Procedure Act 1986 and s 170 of the Industrial Relations Act 1996. These provisions were not considered in Kirk because it was unnecessary to do so . Section 16(2) provides: (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. 103Section 15(2) provides that ' indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced.' It, therefore, includes an Application for Order. 104Section 170 of the Industrial Relations Act provides: 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 105In Rockdale Beef , Basten JA (with whom Mason P agreed) considered that where a reading of the charge as a whole left no room for uncertainty or ambiguity as to the nature of the offence it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence: at [131]. His Honour held at [130] it was not necessary that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified in the charge. His Honour said that some elements may be necessarily implied from what is described, for the purposes of s 16(1)(b) of the Criminal Procedure Act , which provides that an indictment is not bad, insufficient, void, erroneous or defective " (b) for want of an averment of any matter unnecessary to be proved or necessarily implied". 106Basten JA also stated at [132]-[133]: [132] More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least "the nature of" that offence, in some material respect, the defect might be outside the scope of the remedial provision. The effect of s 16(2) may be seen to weaken the mandatory statutory requirement with respect to notice, by removing a basis of invalidity. However, its operation will not depend on the good faith of the prosecutor, but on the effect of the notice. The test for validity will differ from that applied in relation to privative clauses: see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [19]-[20] (Gleeson CJ) and [57]-[60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). On the other hand, the construction to be given to s 16(2) will involve reconciliation between its terms and those of a provision imposing a requirement with which there has been defective compliance: c.f. Plaintiff S157 at [69] and [77]. [133] Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2). No such unfairness was demonstrated in relation to the charge under s 10(2). 107Basten JA was there concerned with the essential legal elements of a charge, not essential factual ingredients such as the manner of the offence. Referring again to our example, a charge that alleges a failure to provide information, instruction and training as may be necessary to ensure the health and safety at work of its employees in relation to the operation of a machine, involves an allegation directed to the manner in which the offence occurred, that is, the act or omission giving rise to the risk. Whilst this may not be an essential legal element, it is certainly an essential factual ingredient and must be pleaded: John L ; Stanton v Abernathy (1990) 19 NSWLR 656. As we earlier pointed out, Kirk determined that a similar allegation was deficient to the extent that it rendered the charge invalid. 108It is arguable that the approach taken by Basten JA would suggest that s 16(2) of the Criminal Procedure Act could be used to overcome the type of defect identified in Kirk and that any deficiency as to specificity could be met by an amendment to the particular pursuant to s 21 of the Criminal Procedure Act or s 170 of the Industrial Relations Act or by the provision of further particulars. This option was referred to by Basten JA at [126]: [126] If it were thought necessary, in the interests of procedural fairness, to make express reference to the relevant business in the charge, the prosecution was entitled to rely upon the material set out in the affidavit of Inspector Wolf, in support of the application. That affidavit asserted that the drag chain conveyor was located at the "Boning Room of Rockdale Beef": par 5. The boning room was described as being "at the abattoir": par 6. The abattoir was said to be "owned by" Rockdale Beef: par 10. Whether any further particulars were required may be doubted in these circumstances, but the case was one in which, had there been a difficulty, amendment of the pleading would have been available: see Stanton v Abernathy (1990) 19 NSWLR 656 at 667 and 671G-672F (Gleeson CJ, Priestley and Meagher JJA agreeing)... 109As Basten JA noted in Rockdale Beef at [110] there are statements in the joint judgment in John L suggesting that an information must state both the nature of the offence and the time, place and manner of the defendant's acts or omissions in order to found jurisdiction. His Honour further noted, however, that that conclusion was reached disregarding "the effect of statutory provisions curing or precluding reliance upon a defect", the majority holding that there were no such provisions operating in the circumstances of that case. 110A statutory predecessor to s 16(2) of the Criminal Procedure Act was s 6 of the Supreme Court (Summary Jurisdiction) Act 1967. In John L , as Basten JA observed, s 6 was held not to be applicable because the charge had been brought under the Consumer Protection Act 1969 (NSW) and not the Summary Jurisdiction Act. The joint judgment, therefore, did not consider the implications of the equivalent of s 16(2) for the charge. 111Brennan J, however, held that s 6 was applicable and that the failure to specify "the manner in which the alleged advertisement was false or misleading" was a defect, the consequences of which could be avoided by operation of an equivalent to s 16(2). 112Notwithstanding the approach taken by Basten JA in Rockdale Beef and Brennan J in John L , whilst the plurality in Kirk did not deal with s 16(2) or s 170, we think it is reasonably apparent that the plurality took the view that the particulars in that case constituted an "irremediable unfairness", to adopt the term used by Basten JA in Rockdale Beef and, therefore, the charge was incurable. This was adverted to by Basten JA (Allsop P and Macfarlan JA agreeing) in Downey at [49]: In Kirk , there were real issues as to what steps the employer should have taken to ensure the safety of its experienced farm manager who was driving the all-terrain vehicle (the ATV). Not only did the uncertainty as to the prosecution case make it (at least) difficult for the defendant to identify whether the relevant steps would have been reasonably practicable, but it also created a difficulty in establishing a causal link between the relevant omissions and the accident. For example, it might have been necessary to ask whether the training which had not been provided would have taught the deceased anything about the vehicle which he did not already know.... 113A complication arises, however, where for example a particular constituting an essential factual ingredient may be defective because it is not sufficiently specific regarding the act or omission alleged to have given rise to the risk and/or the measure that the defendant should have taken to avoid the risk, but where further particulars have, nevertheless, been provided before the trial, or in the course of the trial, elucidating the particular. This would not be an instance of the charge failing to plead an offence unknown to the law, but rather an element required to be pleaded in order that the defendant understands the charge he is required to meet. 114It seems to us that if an act or omission is pleaded imperfectly such that a defendant is not provided with sufficient information thereby creating an unfairness, but which has been remedied by an amendment or by the provision of further particulars before the trial or in the course of the trial without objection and the matter proceeds on the basis of the amendment and/or the further particulars provided, so that it is evident the defendant understands the charge he has to meet, there is no "irremediable unfairness" and the charge is valid. As Basten JA observed in Rockdale Beef at [122] " the relevant principle is that there may be defects which are capable of remedy and defects which are not." An information (or Application for Order) which discloses no offence may be incurably bad: Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 173 per Jordan CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517 per Mahoney JA. It is recognised that s 16 of the Criminal Procedure Act would avoid the consequences of technical defects but does not overcome the requirements of natural justice: Stanton v Abernathy at 666-667. But where the offending particular does not go to the essential legal elements of the offence and the charge has been amended or further particulars have been provided in relation to an essential factual ingredient and in respect of which the defendant offers no objection, any unfairness that may have been visited on the defendant may be cured. To the contrary, if the proceedings constitute procedural unfairness, then the proceedings may not be saved. 115We intend to approach the particulars in this case on the foregoing basis.
Particular (b)(i) in Matters 1390 and 1391 of 2006 116In relation to particular (b)(i) in Matters 1390 and 1391, the appellant submitted: (a) the respondent's position below was that there were a number of measures the appellant could have taken to prevent TD and BH from being in the class sessions on 10 and 15 March 2004 respectively. However, the respondent [prosecutor] submitted it was "for the defendant [appellant] to raise if it wants to make a statutory defence under s 28 and need not be proven as part of the prosecution's case..." and, "[i] t is not for the Court (or here the prosecutor) to specify how the accused person's statutory duty could be fulfilled ..."; (b) it was not made clear in particular (b)(i) whether what was alleged required the appellant to exclude TD and/or BH at the commencement of class, or, whether it was the re-entry to class that ought to have been prevented, or, both; (c) the measures relied on by the respondent to prove particular (b)(i), were not particularised and only emerged during the course of the trial and/or in its written submissions at first instance. Included in those measures was that the DJJ unit staff could refuse to send the young person to school or refuse them the incentive of going to school. That did not allow proper consideration of the defences available by the appellant; and (d) although Schmidt J found particular (b)(i) proven for both Matters 1390 and 1391, the actual behaviour of TD and BH alleged to have created the risk of a psychological injury to TAS Mary and TAS Su on 10 and 15 March was not identified in particulars (a) or (b)(i). 117Schmidt J did find the particular had been made out: see liability judgment at [415]-[422] and [576]-[585]. 118We refer to the appellant's contention that it was not made clear in particular (b)(i) whether what was alleged required the appellant to exclude TD and/or BH at the commencement of class, or, whether it was the re-entry to class that ought to have been prevented, or, both. Particular (b)(i) identifies an omission of the appellant and the measure required to obviate the risk. The proposition that it was not made clear whether what was alleged required the appellant to exclude TD and/or BH at the commencement of class, or, whether it was the re-entry to class that ought to have been prevented, or both, was merely a matter for further particulars, which, in any event, were provided. In the trial, the respondent in his opening made it clear that particular (b)(i) applied to whenever TD or BH was not prevented from being in the class. The summary trial was conducted on the basis that (b)(i) applied to whenever TD or BH was not prevented from being in the class and included TD should not have been able to enter the class at or about the time of the second bell in the company of SS. No misapprehension ever existed on behalf of the primary judge or the appellant. 119It was submitted by the respondent at first instance as follows: The presence of TD or BH means the risk particularised in (a) existed. The objective facts making out this failure to the criminal standard can be simply stated as the following: (a) The defendant on the respective charge dates did not prevent TD or BH from being in the General Education class from the very beginning of respectively Session 1 and Session 3. (b) The defendant on the respective charge dates did not prevent TD once he left the class from re-entering on two occasions. (c) The defendant on the respective charge dates did not prevent BH once he left the class from re-entering. The prosecution's case is that this failure is made out if TD or BH were in the respective General Education class room for any period of time. 120In relation to contention [116(a)] above, the respondent did submit in relation to particulars (b)(i) and (b)(iii) of the occupational violence charges that proof of the commission of the offence did not require demonstration that these particular measures should have been taken by the accused person to prevent or reduce the risk and it was not for the Court (or the prosecutor) to specify how the accused person's statutory duty could be fulfilled. However, it is implicit in (b)(i) that the obvious measure available to obviate the pleaded risk was to prevent TD and BH being in the relevant class. To that extent, the requirement in Kirk to identify the measure that should have been, or should be, taken to avoid or minimise the risk was met. The question of causation is another matter that we shall deal with later. 121The appellant appears to complain, however, that there was not sufficient particularity in relation to the measure, firstly, because it did not state how the appellant was to prevent the two detainees from being in the class and secondly, that the respondent, in both charges, did not specify what conduct or behaviour of TD and BH on the relevant day constituted a risk to a TAS sustaining psychological injury and, therefore, without that information the risk alleged in particular (a) was at large and too general in nature to allow for the proper operation of the defence provisions in accordance with Kirk. 122As to the first of these contentions, the issue is not whether the charge identified the measure, but rather whether the measure identified was sufficiently particularised. The respondent, in its submissions at first instance, did expand on those measures that could have been taken by which the appellant could have prevented TD or BH from being in the class for all or part of the period of time that he was physically present, including: (a) The DJJ Centre Manager determining whether a detainee attends class or the class mix and can overrule the DET Principal", "(e) Attendance of the detainee at alternatives to the Putland ETU -Class Programs that are implemented by DJJ: either Non Programs in which detainees watch commercial television, read or play cards or Work Placement in which detainees conduct general centre duties such as grounds maintenance and cleaning" and the post-incident measure or step in (k) of "Transferring BH to Kariong as occurred after the 15 March 2004 incident. 123Thus, in relation to identifying the measures that should have been taken by the appellant to prevent TD and BH being in the relevant classes, it is clear the appellant was put on notice about such measures and there is no substance in the contention that it "...did not allow proper consideration of the defences available by the appellant" and "... failed to allow the appellant to consider properly the s 28 defences, or for the court to apply those defences..." The measures identified by the respondent were part of the appellant's undisputed systems of work that applied on the charge dates. 124It is correct to say the respondent did not plead in the Applications for Order the measures by which TD and BH could have been excluded from the relevant classes. However, these were matters that were properly the subject of a request for further particulars. The appellant made no request for particulars regarding the paragraph (b) particulars in relation to Matters 1390 or 1391, nor did the appellant make any complaint to the effect it did not understand what measures were being alleged to obviate the risk, nor did the appellant move the court below to strike out the charges on the ground they were invalid, null, void or otherwise bad at law because of perceived deficiencies. 125As to the second contention, that the respondent, in both charges, did not specify what conduct or behaviour of TD and BH on the relevant day constituted a risk to a TAS sustaining psychological injury, this again was a matter for further particulars and in that respect it should not be overlooked that the detainees' conduct or behaviour on the relevant days was described in detail in the respondent's affidavits supporting the Applications for Order. As we have already pointed out, if it were thought necessary, in the interests of procedural fairness it is permissible for the respondent to rely on those affidavits: Rockdale Beef at [126] per Basten JA. It is impossible for the appellant to contend that it was denied procedural fairness in preparing any defence, given the detailed assertions in the affidavits. 126Even if the appellant is correct in contending the Applications for Order were defective, we think they were only defective in a technical sense given the nature of the offence is clear on the face of the Applications and there is no procedural unfairness. In that respect we refer to s 16(2) of the Criminal Procedure Act . 127If the deficiencies in an Application for Order were "so gross that as a matter of construction s 16(2)(a) would be read as not applying to them" or "if irremediable unfairness would result from a particular defect" the defect might well fall outside the terms of s 16(2): see Rockdale Beef at [130]-[133] per Basten JA; Hamilton v John Holland at [44]-[47]. In the present proceedings, the failure by the respondent to provide further particulars regarding the measures necessary to obviate the risk did not give rise to any fundamental unfairness such as to render s 16(2) inapplicable. The further particulars were provided in the course of proceedings, such particulars being derived from the appellant's own business records. 128We should also refer to Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 at [53]: [53] If the pleadings were deficient in failing to identify an essential element of either offence, it may not matter whether the issue was raised by a challenge by way of demurrer before the trial, or in the course of the trial, or not at all in the trial court. A conviction based on a charge not revealing an offence against the law will be invalid. However, if the complaint is in truth one of a failure to provide particulars, which were not sought at or during the trial in the Local Court or on appeal, a different analysis is required and invalidity will not usually result. In the present case, the complaint is no more than a failure to provide particulars which were not sought but may (though not inevitably) have been ordered if sought. The challenge to the validity of the proceedings and the resulting conviction on this ground is rejected. 129We find that the Applications for Order in Matters 1390 and 1391 were not rendered invalid by particular (b)(i).
Particular (b)(ii) in Matters 1390 and 1391 of 2006 130Particular (b)(ii) in both Matters 1390 and 1391 alleged a failure of the appellant to have a juvenile justice officer present in the classroom to support and monitor students, classes and program delivery staff on 10 and 15 March 2004. Schmidt J found that this particular had been made out: see liability judgment at [423]-[433] and [586]-[596]. 131It was contended for the appellant that "particular (b)(ii) did not constitute a 'measure' in that it did not identify how that action could create or contribute to the risk alleged in paragraph (a)." It was submitted no information was provided as to what was meant by the phrase "to support and monitor students, classes and program delivery staff" or how this would address the risk to a TAS as alleged. The particular, it was submitted, did not specify if it was only to apply to the classes attended by BH and TD or whether it applied to all classes. As such the particular did not permit proper consideration of the defence provisions. 132In addition, it was submitted, even if this particular was complied with on 10 and 15 March 2004, it would not have removed the risk identified in particular (a) in that if a detainee behaved in a threatening manner to a DJJ officer and that was witnessed by TAS Mary and TAS Su, that behaviour would constitute a risk and a potential risk to the psychological welfare of each TAS. In the alternative, should this particular be construed as a measure, it was contended that insufficient evidence was available to support the findings made by Schmidt J, that is, that the particular was proven and that no defence had been made out under s 28 of the OHS Act. 133We do not understand what the appellant meant by the contention that "particular (b)(ii) did not constitute a 'measure' in that it did not identify how that action could create or contribute to the risk alleged in paragraph (a)." Section 8(1) of the OHS Act will be contravened where there has been a failure, on the part of an employer, to take a particular measure: Kirk at [12]. Kirk requires the identification in the charge of the particular measure that should have been taken to avoid the identifiable risk eventuating: at [14]. Kirk does not stand for the proposition that the pleadings must "identify how that action [the measure] could create or contribute to the risk." 134In any event, the charges in particular (b)(ii) do identify a measure to avoid the risk, namely, the presence of a juvenile justice officer in the classroom. It seems to us that is a reasonably simple and straightforward proposition as to what is an adequate measure. Nevertheless, the appellant complains it was not sufficient information. But that is a matter for evidence. It was open to the appellant to seek further particulars from the respondent or an order to that effect, but the appellant did not do so. 135In respect of the appellant's specific complaints we note that the wording, " support and monitor students, classes and program delivery staff" came from the appellant's "Memorandum of Understanding Between the Departments of Juvenile Justice and Education and Training, 2002" in the context of DJJ providing an adequate number of officers to Putland to "support and monitor students, classes and program delivery staff". Secondly, the trial was conducted on the basis that particular (b)(ii) applied to the General Education class attended by TD or BH on the respective charge dates. There is no indication in the first instance proceedings that the judge or the appellant misunderstood that to be the case such that the charge may have concerned other classes. 136As to the proposition that the particular would not have removed the risk, we do not consider Kirk changed the law as stated in O'Sullivan , in that the duty in s 8(1) extends to eliminating or preventing or minimising risk. In O'Sullivan at [42] it was stated: [42] The fact that a risk was not created by, or under the control of, a defendant is not to the point. Many prosecutions under the Occupational Health and Safety Act involve risks not created by the defendant. The defendant's obligation under s 15(1) of the Act is to ensure the safety of employees. That may be done by eliminating, or preventing or minimising exposure to, any risk however it may have come about or, given the defence of reasonable practicability, by taking all reasonably practicable steps to ensure employees are not exposed to the risk . (emphasis added) 137We refer to what we said regarding s 16(2) of the Criminal Procedure Act in relation to particular (b)(i), which applies with equal force to the appellant's submissions in relation to particular (b)(ii). That is to say, even if there wasa technical deficiency there was no denial of natural justice. We also refer to s 170 of the Industrial Relations Act. 138We find that the Applications for Order in Matters 1390 and 1391 were not rendered invalid by particular (b)(ii).
Particular (b)(iii) in Matters 1390 and 1391 of 2006 139Particular (b)(iii) concerned the failure to undertake an adequate risk assessment of the composition of the class and in particular the presence in the class of detainee TD [ or BH] . Schmidt J found this particular had been made out: see liability judgment at [434]-[465] and [597]-[608]. 140It was submitted, firstly, by the appellant that Schmidt J found that class composition had no role to play in the risks that presented on 10 and 15 March. It followed, it was submitted, that the other aspects of this particular (consultation with the teacher and TAS; provision of the history of BH; assessing the risk; and putting in controls) fell away. 141In relation to this submission, what Schmidt J found in relation to TD and BH respectively, was: [465] I do accept the defendant's case, that nothing in relation to class composition, seems to have been connected with the risk to safety which manifested that day, so far as TD was concerned. Class composition was generally determined at Friday meetings of staff and daily, as detainees came and went under a system which it is unnecessary to explore further. While I accept that the evidence also demonstrated deficiencies and failures by the defendant in this respect, there was no evidence that any change in the composition of this class, or that class composition itself played any role in the risk to safety which materialised on 10 March. It is unnecessary therefore, to further deal with this evidence. This aspect of this particular was not made out. ... [608] I am satisfied to the necessary degree that the risk assessment of BH was entirely inadequate on 15 March and that this aspect of the particular was established. The allegation as to the inadequacy of the risk assessment in relation to composition was not established, however. The evidence did not establish that the composition of the class in which BH participated that day, was causally connected with the manifestation of any risk of injury for TAS Mary and TAS Su, on 15 March. It was BH's presence in class and the risk which he posed, not that of other detainees, which led to the manifestation of this risk. 142We do not accept the appellant's submission. The particular was principally concerned with the presence of TD and BH being in the classrooms and the failure by the appellant to undertake an adequate risk assessment as to their presence as part of the composition of the class. The issue of the class composition was readily severable from the principal issue, as Schmidt J determined. The fact that the class composition issue was not made out, does not impact on her Honour's finding that the principal issue was made out: Environment Protection Authority v Sydney Water Corp Ltd (1997) 98 A Crim R 481 at 485. 143It was submitted for the appellant in the alternative that particular (b)(iii) did not constitute a "measure" of the kind referred to in Kirk in that the particular was ambiguous and vague and did not identify what it was the appellant ought to have done to address the risk in particular (a). In this respect, it was submitted firstly, that particular (b)(iii) did not identify the deficiencies of the risk assessment or how an assessment of class composition would be "adequate". In addition, the particular did not identify sufficiently what was meant by the phrase "consultation with the teacher and TAS" or when this was to occur. The particular did not inform the appellant of what form of consultation was required; who was to carry out the consultation and when was it to occur in order to address the risk in particular (a). 144Secondly, and in the same vein, it was submitted in relation to the phrase "provision of the history of BH" it was not stated what history was to be provided, by whom and when in order to address the risk in particular (a). Likewise, the phrase "assessing the actual risk according to how severely could it hurt someone or how ill it could make someone" was submitted to be too general and vague to constitute a measure. Further, that: No information was given about the 'actual risk' or to whom it was to apply. If the 'actual risk' was the risk pleaded in (a) there was no reference to which detainee it applied or what behaviour was relied upon. The phrase 'assessing the likelihood that the risk will cause an injury' provides no information as to what risk is being referred to eg is it from the class composition, BH or some other source? In a similar vein, the phrase 'putting in measures or steps to minimise or reduce the risk' is ambiguous and uncertain. The measures or steps that should be put in place are not identified as to whether they apply to BH or the class. The particular as pleaded did not permit a proper consideration of the defences. 145This is another instance where the omission is clearly set out in the particular and the necessary inference is available as to what measure the appellant should have taken to obviate the risk. Any further information was a matter for evidence. In that respect, it is difficult to understand how it can be submitted that the particular was ambiguous and vague and did not identify what it was the appellant ought to have done to address the risk in particular (a) when the appellant had clear notice that the risk assessment the respondent asserted had not been carried out was a risk assessment in accordance with the appellant's own policies and procedures. For instance, it was known from the prosecution brief and the respondent's opening submission that in relation to risk assessment the respondent would be relying on, amongst other policies and procedures, DET's "Occupational health, safety & injury management - a guide for the principal or manager", 1999, which referred to a risk assessment method known as "Hazpak" contained in a publication of WorkCover NSW, "Hazpak - Making your work place safe: A practical guide to basic risk management". DET's guide stated in relation to the publication, "It is a publication that the principal or manager can use to identify hazards. The kit is well structured and easy to use. A complementary (sic) copy of Hazpak has been included as an insert in this guide." 146If the appellant had available to it a method of risk assessment, especially one that included Hazpak as recommended by the State's principal prosecuting authority, which the respondent contended should have been applied, which addressed the need to consult with the teacher and the TAS allocated to the class, which addressed the need to provide a history of detainees attending the class and which addressed how the actual risk and the likelihood of injury was to be assessed, there is surely little room for conjecture about the nature of the risk assessment measure contended as being necessary to obviate the risk of injury due to being subjected to or witnessing actual violence or anti social behaviour by TD and BH in the classroom. 147The deficiency in the risk assessment of individual detainees, which the appellant claimed had not been pleaded, was that there was no risk assessment at all using the matrix and hierarchy of control method, which was set out in the documentation identified above, together with other risk management material applicable at Putland that was in evidence. The appellant was aware this was the respondent's case; it was not caught by surprise. Indeed, the appellant ran an evidentiary defence at first instance in response. 148We find that the Applications for Order in Matters 1390 and 1391 were not rendered invalid by particular (b)(iii).
Particular (b)(iv) in Matters 1390 and 1391 of 2006 149Particular (b)(iv) alleged a failure to provide "adequate information" and "psychological information" about the past violent behaviour of TD and BH and a failure to provide "incident prevention" and "reduction strategies". Schmidt J found this particular had been made out: see liability judgment at [466]-[468] and [609]. 150The appellant submitted the particular specified what type of information should have been provided but failed to state to whom and when. The use of the terms "adequate information" and "psychological information" in the particular were said to be "uncertain and ambiguous". Further, that the particular failed to inform the appellant as to what would constitute an adequate level of information to address the risk pleaded in particular (a) in order for the obligations under s 8(1) of the OHS Act to be discharged. The deficiencies in the information that was provided about TD and BH to employees were not identified. Nor did it inform the appellant of what would have been adequate to discharge its duty. The particular did not permit proper consideration of the defences. 151It is a matter of some concern that a defendant who has made no relevant complaint at first instance regarding the form or substance of the particulars of a charge (as distinct from essential elements) and failed to seek further and better particulars, on appeal contends that it was not provided with sufficient information in the charge to prepare a defence. We do not understand Kirk to be an authority for the proposition that unless particulars of a charge contain all of the information that a prosecutor intends to rely on in its case, the charge is defective. In this respect, what Kirk confirms by reference to the decision of Dixon and McTiernan JJ in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 406 and 501 is that an information must specify "the time, place and manner of the defendant's acts or omissions" or "fair information and reasonable particularity as to the nature of the offence charged" (see Kirk at [26]). The rule in Johnson v Miller does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 at 290, 291. In Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 it was stated: [18] The purpose of particulars is to assist in defining the issues at the trial, whereby the opposite party knows the case it has to meet and will not be taken by surprise, so that the evidence to be led can be appropriately confined and costs can be limited by avoiding the expense of preparing to meet issues which will not arise. 152The appellant has contended in these proceedings that the particulars do not allow it to prepare a defence because there is insufficient information. That submission disregards the fact that the information the appellant complains is missing from the particulars - which were of the character of further particulars, not essential elements of the offence - was provided as further particulars by other means, either in the affidavits accompanying the Applications for Order, in the respondent's opening submissions or in its own business records, which the respondent relied upon and which were identified to the appellant. See also R v Hamzy (1994) 74 A Crim R 341. 153The appellant's complaint regarding particular (b)(iv) is essentially no different to its earlier complaints and may be met in the same way. The publication "Guidelines for Schools and TAFE NSW Colleges and Campuses Management of Serious incidents", a business record of the appellant, provided in the latest (2004) version: Information obtained through risk management activities undertaken in Section 1.3 should be used to develop strategies for serious incident prevention. The aim of incident prevention strategies is to eliminate the risk of serious incidents or if this is not possible then minimise the impact of such risks. 154In his opening submission at first instance, counsel for the prosecutor made it apparent that the allegation was that the information referred to in the particular should have been provided to teacher Ron and TAS Mary before their General Education class on the respective charge dates. The prosecutor submitted: [Teacher Ron] and [TAS Mary] will indicate when they are shown various attachments which will specify details of the history and background of TD and BH that they were not made aware of the specifics before the relevant teaching session. I have said that the evidence says they knew of their reputation. The prosecutor's case will be each should have been advised of what is referred to in failure (iv); it would have brought a new dimension to their consideration of matters relating to the risk referred to in further particular (a). The prosecutor's case is there was a clear indication to so inform the teacher and Teacher's Aide Special under the Occupational Health & Safety Act. 155The reference to the OHS Act in the submission may be taken to mean a reference to Division 2 of Part 2, which requires an employer to consult with employees to enable them to contribute to the making of decisions affecting their health, safety and welfare at work. In the Note to Ch 2 of the Occupational Health and Safety Regulation 2001, it states: Note. This Chapter imposes obligations on an employer to identify foreseeable hazards that may arise from the conduct of the employer's undertaking, to assess the risks of those hazards and to eliminate the risks or, if not reasonably practicable to do so, to control the risks. Division 2 of Part 2 of the Act requires an employer to consult with employees to enable them to contribute to the making of decisions affecting their health, safety and welfare at work. Among other things, the Division requires such consultation when risks to health and safety arising from work are assessed and when decisions are made about the measures to be taken to eliminate or control risks. (See Chapter 3 of this Regulation for further provisions regarding the machinery of consultation.) 156The business record of the appellant (relied upon by the respondent at first instance) that identified, quite specifically, the type of information to which the particular referred was the document titled "Taking Safety Seriously: Risk Management for Education and Training Units within Juvenile Justice Centres". Section 2 of that document dealt extensively with risk management of student behaviour. 157As a matter of procedural fairness, the appellant's submissions at first instance make it apparent that the appellant did, in fact, know to whom and when it was alleged the adequate information referred to in the particular should have been provided. The submissions acknowledged that it was the prosecutor's case that TAS Mary and TAS Su were put at risk because they were not provided with the type of information referred to in particular (b)(iv). 158We find that the Applications for Order in Matters 1390 and 1391 were not rendered invalid by particular (b)(iv).
Particulars (b)(v) in Matter 1390 of 2006 and (b)(vi) in Matter 1391 of 2006 159These particulars alleged a failure to provide adequate information, instruction and training including on self defence, assault response and/or behaviour management. In Matter 1390 of 2006 the particular (b)(v) was held not to be proven in respect of TAS Su (at [612] of the liability judgment). 160In relation to the finding the particular was made out in relation to TAS Mary, the appellant submitted particular (b)(v) referred to the provision of "adequate information, instruction and training" without specifying what type of information, instruction and training was required in the circumstances. Secondly, the use of the word "adequate" was inexplicit. Thus, the deficiencies in the actual information, instruction and training provided were not identified such as to permit the defences to be considered properly. 161It is correct that there was nothing in the charges themselves that specified what type of information, instruction and training was required in the circumstances such that it could be regarded as "adequate". Because of this, the question is whether the particular, framed in the way it was, failed to identify the act or omission giving rise to the risk or the measures that should have been taken to address it. 162In Kirk, the second particular of the charges was that the defendant failed to "provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle ('ATV')". The plurality referred to this particular at [28]: The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. 163It seems to us that no distinction can be drawn between, on the one hand, particulars (b)(v) of Matter 1390 and (b)(vi) of Matter 1391 and on the other hand, particular ii in the s 15 Kirk charge. Particulars (b)(v) and (b)(vi) did not identify the particular act or omission that was necessary to be identified as an essential element of the charge, namely, the manner in which the risk arose. The particulars also failed to specify the measures that should have been taken by the appellant by way of information, instruction or training to avoid the risk to safety. 164The particulars do refer to the failure to provide "adequate" information, instruction or training. In John Holland (CA), Spigelman CJ held that the use of such words as "adequate" or "sufficient" did not necessarily invalidate a charge, but might be the subject of an application for further particularisation. But that is not the complete answer to the appellant's complaint regarding these particulars. 165Despite the similarity of the particulars in question, the critical difference between the circumstances that prevailed in Kirk and the circumstances in the present proceedings is that the appellant was not disadvantaged by any "irremediable unfairness". 166The type of information, instruction and training to which the charges referred was described in documentary advice that had application to Putland, that is, in the appellant's own business records. The respondent opened his case on 16 April 2007, providing assistance to the trial judge and the appellant in understanding the nature of the prosecution case, including by providing references to the appellant's paper systems that existed before any charge date. 167The advice was then summarised in the respondent's written submissions at first instance, which were filed and served on 11 June 2008. The appellant filed and served the main body of its written submissions on 1 August 2008 and on 7 and 8 August 2008, the respondent and appellant made further oral and written submissions. The content of the written and oral submissions demonstrate that there was no lack of understanding by the appellant about the respondent's case at first instance. There was no complaint by the appellant and no misapprehension as to the charges the appellant actually faced or the case presented by the respondent in support of those charges. 168The documentary advice regarding self-defence drawn from the appellant's own business records, and which had application at Putland, included the following: (a) Legal Services Bulletin No. 9 'Physical Restraint of School Students', 10 March 2000, including "[a]ny physical restraint of a student should be only that which is reasonably necessary in the circumstances to prevent the feared injury or serious damage..." and "[t]he level of intervention will range from verbally directing the students to stop through to physical restraint of one or more of the students involved. The department's obligations may not be met if staff wait until the behaviour subsides before taking action." (b) Legal Services Bulletin No. 19 'Legal Liability and Rights of Staff ...', 22 November 2002, including "[w]hile members of staff should not place themselves at risk of physical harm, a number of basic strategies are available including ... - Physical intervention or restraint of persons involved in the incident ..." 169In relation to the expression "assault response", this derived from the appellant's document "Keeping Safe: A Risk Management Approach to Managing Behaviours", which was "provided as a resource for schools working with students with challenging behaviours". The document included a table, "Long Term Strategies that affect future outcomes" and under the column "Crisis Management": "Training such as Professional Assault Response Training (PART) or Non Violent Crisis Intervention Training", where the expression may be found. The expression "behaviour management" also derived from documents applicable to Putland, for example, the document "Behaviour Management - Managing Difficult Behaviour". 170As we have noted, the appellant at first instance addressed these particulars without any complaint at that time that it could not run a defence. Indeed, it did run an evidentiary defence that what it provided was adequate. Schmidt J found that it was not. An example of where the appellant's training was found to be inadequate involved self-defence. The appellant's paper system provided for training in self-defence. It was the evidence of Jayne M, assistant manager client services, a witness for the appellant, that DET staff were not trained in self-defence and that it was unsafe for them not to have been provided with such training. Obviously, if no training in self-defence was provided, it would not be adequate instruction if that gave rise to a risk. 171In relation to the complaint about the term "adequate", we addressed this issue earlier. The respondent's case was that the information, instruction and training prescribed in the appellant's paper systems, if it had been implemented at Putland, would have been adequate. The appellant, therefore, was advised of the benchmark for adequacy. 172There was disagreement at first instance over the relevance of the appellant's paper systems. At [72]-[73] of the liability judgment Schmidt J stated: [72] The evidence also showed that various of the defendant's paper policies were not in operation at Putland. Given what they envisaged would be done at Putland to ensure staff safety, I am unable to accept the defendant's submissions that they are not relevant to the charges here in question. [73] This follows not only because these policies themselves demonstrated that the risk of psychological injury was one known to the defendant at the relevant time, but they also showed other steps which the defendant had devised to deal with that risk, in addition to the practical safety measures in place. Given that some of these policies were not operating at Putland, or were not being enforced, the prosecution's argument that they revealed steps available to be taken by the defendant, which it failed to take, had to be accepted. It is thus necessary to consider what these paper systems were. We agree with her Honour. 173Support for her Honour's view may be found in Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, which her Honour referred to at [303] of the liability judgment. In that case it was stated by Mason CJ and Toohey J at 504: In this respect, the availability of the privilege to corporations has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence. In the case of corporations, their books and documents constitute the best evidence of their business transactions and activities. and McHugh J at 554: Corporate conduct is often complex. Assessment of a corporation's conduct may only be possible through an examination of its documents (Ramsay, "Corporations and the Privilege against Self- Incrimination", (1992) 15 University of New South Wales Law Journal 297, at pp.306-307; Hale (1906) 201 US at p 74; White (1944) 322 US, at p.700). This is particularly so in cases where the alleged wrong is committed as a result of the failure of a system set up by a corporation (Professor Ashworth ( Principles of Criminal Law (1991) p 82) has said of corporate disasters such as the Bhopal chemical factory disaster and the capsize of the ferry, the Herald of Free Enterprise : "There are few who believe that these disasters can be presented as the responsibility of a few individuals. Indeed, enquiries into the disasters have tended to emphasize the role of deficiencies in the systems of management and accountability."). A true understanding of the corporation's procedures is likely to be gained only through evidence from the corporation itself, particularly from its records. The difficulty in obtaining independent evidence against corporations is sometimes exacerbated by the inability to identify a victim of corporate behaviour who can testify. Often, the victim is an "amorphous entity such as a market" (Ramsay, op cit, p.307; see also Australia, Parliament, Report of the Joint Statutory Committee on Corporations and Securities, Use Immunity Provisions in the Corporations Law and Australian Securities Commission Law (1991) p 23). Furthermore, corporations are often well equipped to cover up their activities and to fund their defences (Fisse, Howard's Criminal Law , 5th ed (1990) pp 591-592). 174We note also what was said by the Full Bench in Inspector Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259; (2004) 136 IR 449 at [67]-[68]: [67] The following discussion of paper systems in WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 at [35] is pertinent: The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its 'paper systems' are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214 par 26. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997, at p4), for example, Fisher P said: The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work.' Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant. See also WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 at [155]-[156]. [68] In our view, whilst there may have been evidence that the respondent maintained a paper system, the content of that system was inadequate having regard to the nature of the duties actually performed by workers. Further, not only did the respondent fail to actively promulgate the system (such as it was) in the workplace, by the actions of Mr Counsell, the respondent ultimately promulgated an inherently unsafe system of work. Mr Hodgkinson submitted that "it is not a paper system in that the employer derives the system which he expects to be implemented. It became an unused system because Mr Counsell adopted a system which didn't employ the use of the ladder". We do not consider that that submission conflicts with our findings. 175Nevertheless, the appellant had referred to its policies as being of "a general and guideline nature" and, therefore, not probative of the identifiable risk or acts and omissions. It contended that: The policies and documents her Honour relied on to establish the liability of the appellant were either (i) generic in nature (ie applied to all NSW Crown agencies and departments); (ii) had equal application to all mainstream schools (where no remand students were taught); (iii) and referred to school sites where the primary form of risk assessment was based on HAZPAK. 176Principals of schools, including Putland, when dealing with matters affecting the rights and interests of persons, were required to comply with "any relevant policy guideline or statutory provision applicable to a given situation". Principal Kate gave evidence that in and before March 2004 as a Principal she understood that if there was a written policy from the Department in place that applied to Putland it was understood it had to be applied by Putland. 177Further, as Schmidt J stated at [39] of the liability judgment: [39] ... It was the evidence of Mr Armstrong, the DET's District Staff Welfare Officer ... Putland was the only school in the district located within a juvenile justice centre. This gave rise to some circumstances, in terms of the teaching environment, that were not common in the other 58 schools in the district. It was considered to be the most dangerous school, in terms of staff being exposed to actual or threatened violence. That was why various practical safety measures were put in place. 178As the respondent submitted, it could not seriously be suggested, even accepting the appellant's description that its own documents "were generic" and "were of a general and guideline nature", that written policies or procedures providing information, instruction and training including on self defence, assault response and/or behaviour management should not have been applied at the most dangerous school in the Penrith District. 179Accordingly, we find that particulars (b)(v) of Matter 1390 and (b)(vi) of Matter 1391 did not render the Applications for Order invalid.
Particular (b)(v) in Matter 1391 of 2006 180This particular alleged a failure by the appellant to "have adequate emergency communication equipment and systems for employees to summons help." Schmidt J found this particular had been made out: see liability judgment at [469]-[473]. 181The appellant submitted particular (b)(v) lacked the necessary particularity to constitute an offence in that it referred to "adequate" equipment and systems. No information was provided as to how the said equipment and systems were not adequate and how the risk in particular (a) would be addressed. It was submitted it had not been alleged that the equipment or systems were deficient, only that they were not "adequate" on 10 March 2004. 182It was also submitted particular (b)(v) made no reference to a failure to report the incident to the District Office or a failure to subsequently investigate the incident by the Principal. Each of these matters, it was submitted, was subsequently relied upon to prove the particular, yet no particulars were provided to permit this finding in relation to this charge. The defences, it was submitted, could not be properly considered. 183In its opening submission at first instance, counsel for the respondent stated: [B]ut it seems none of these paper systems dealt with expressly what occurred on 10 March 2004 involving detainee TD. There may have been an emphasis on fire drills, things like that but not practical drills on how to respond when a staff member activated his or her radio or personal duress alarm. In any event your Honour, the prosecution anticipates what will be shown is that even before 10 March 2004 it had been experienced that on occasions, assistance could not be attempted as there was no air space on the radio or the radio system had operated previously in an unsatisfactory manner when faced with emergencies; in a way the prosecution believes is permissible, your Honour, will be able to consider the actual incidents to see that manifested on the risk on 10 March 2004. The evidence will be that at least [Teacher Ron] had tried to obtain help by pressing his personal duress alarm once TD started threatening [Teacher Ron] in the classroom in the presence of [TAS Mary] but there was no response. Despite pressing the alarm on a number of occasions. 184It would seem to us that in the light of these opening submissions, and in the absence of any objection or request for further particulars, the appellant was advised about why it was alleged the emergency communication equipment and systems were not adequate. What is more, the appellant, in defence of its position, relied upon the systems it had in place on 10 March for emergency communication and contended, in an extensive submission, that the matters relied on by the respondent in relation to this particular, were not made out. We do not accept the appellant's submission that a defence could not be properly considered. 185As to the reporting of the incident to the District Office and the failure to subsequently investigate the incident by the Principal, these factors were superfluous to proving the particular. 186We find that particular (b)(v) of Matter 1391 did not render the Application for Order invalid.
Did the acts/omissions particularised in paragraph (b) of Matter 1392 of 2006 constitute "measures" that found an offence against s 8(1) of the OHS Act?
Particular (b)(i) 187Particular (b)(i) in Matter 1392 alleged that the risk arose from the appellant failing to provide management support when the school Principal left the premises to pursue three escapees. This particular was found not proven and, therefore, did not form part of the appeal: see [728] of the liability judgment.
Particular (b)(ii) 188Particular (b)(ii) alleged a: "Failure to provide social support in the form of adequate consultation when the Principal did not make herself aware of the incident on 10 March 2004 in which class teacher [Ron] and TAS [Mary] were subject to abuse in the classroom and there was not an adequate response to an emergency summonsing for help." Schmidt J found this particular had been made out: see liability judgment at [729]-[734]. 189The appellant's complaint regarding this particular was that it specified the behaviour to which Teacher Ron and TAS Mary were exposed on 10 March as "abuse in the class room". That information, it was submitted, was not provided in Matter 1392 as to the behaviour of TD and this was indicative of the lack of precision in those particulars. 190It was further submitted that the reference to "adequate consultation" and "adequate response" made the particular ambiguous and uncertain. The mere act of making oneself aware of something, it was submitted, cannot give rise to "adequate consultation"; what may be adequate consultation to one employee may not be adequate for another employee. The defences could not be properly considered as a consequence. 191As to the first complaint, there is some merit in it. The particular refers only to abuse in the classroom and lacks precision. The other particulars bring no further enlightenment, nor does the accompanying affidavit, which only refers to "the incident" in the classroom on 10 March. However, the brief of evidence gave an account of the nature of the abuse. This explains why the appellant did not seek any further information or clarification about the particular. Further, it is apparent from the record of proceedings at first instance that the appellant dealt with the particular on the basis that it knew and understood completely the circumstances of TD's conduct. No unfairness was visited upon the appellant. 192We do not accept that the lack of precision in the particular was such as to render the charge invalid. If, because of the lack of precision the particular could be regarded as defective, we think s 16(2) of the Criminal Procedure Act makes the defect unobjectionable. The defect is not so gross as to misstate the nature of the offence, or such that the appellant did not understand the case it had to meet given how it dealt with the particular at first instance. It follows that the defect was not of such a nature that the appellant was unable to prepare a defence. 193As the respondent submitted, the word "consultation", and what was intended by the use of that term, was known to the appellant and its legal advisors before the summary trial commenced. See for example: (a)The "Occupational health, safety & injury management - a guide for the principal or manager" states on a number of occasions that workplace stress management strategies include "effective communication procedures and consultative processes" (Chapter 4 Risk Management p 19 and Chapter 5 Important Issues p 2). (b)"Keeping Safe: A Risk Management Approach to Managing Behaviours" under "Consultation" stated that consultation was "essential to the implementation of sound occupational health and safety practice". (c)"Taking Safety Seriously Risk Management for Education and Training Units Within Juvenile Justice Centres" Draft November 2002 contemplates: 1.Under "1.2.1 Risk management" that the process outlined in the Australian Standard on Risk Management AS4360 includes "Communicate and consult" and "Monitor and review". 2.Under "1.2.2 Workplace consultation" that: "It is an essential part of managing health and safety at work and is a valuable means of improving local decision-making about workplace health and safety"; and "The views of employees are to be valued and taken into account by the employer." 3.Under "1.3 Risk management" and "1.3.1 Identifying hazards", including: Hazards can be identified through: Investigating accidents and injuries Examine the causes of accidents and injuries in the workplace to determine hazards
... Consulting with staff Communicate with employees ... to find out what they consider are safety issues
..." 4.Under "2.4 Workplace consultation" that: "The principal should ensure strategies are in place to regularly review and monitor health and safety in the workplace. Suggested strategies include: ... * incident investigations ... * follow-up complaints relating to OHS." 194As we noted earlier, the framing of the charge in Matter 1392, insofar as the particulars are concerned, was based on the expert report of Ms Knox Haly. After setting out examples of what Ms Knox Haly suggested were examples of inadequate social support (these examples were adopted by the prosecutor as the particulars of the charge), Ms Knox Haly stated: Example one reveals that the Principal could not be relied upon to fulfil her responsibilities to her staff during a critical situation. Instead of being dependable in her responsibilities to coordinate the safe movement of her staff during a critical work situation, the principal left the Unit grounds to pursue the absconding detainees on March 10 th 2004. Example two, three, four and five demonstrates that the principal did not actively listen or seek to demonstrate concern about her staff. If the principal had been on hand to coordinate the safe movement of staff, instead of chasing escapees, she would have realised that a critical incident had occurred with [teacher Ron] and [TAS Mary]. The principal would have definitely been aware that a critical incident had occurred if she had been approachable and concerned to hear [TAS Mary's] views at the next staff meeting; (and when [TAS Mary] had attempted to raise the matter shortly after the principal had returned from pursuing detainees). Instead the principal only became aware of the critical incident during a stress investigation assessment conducted by the Centre for Corporate Health some two months after the critical incident. Example six refers to the allegation that the principal did not consult with [TAS Su] over the bomb threat, class room fight and escape on March 17th 2004. [TAS Su] advises that the principal never sought her views on the bomb scare, escape, and classroom fight on 17 th March 2004. [TAS Su] had formed the view that she would not be given a receptive hearing after witnessing the Principal's reaction to [TAS Mary] on 12th March. It is an illustration of how two staff members have formed the belief that their manager is neither approachable, receptive nor interested in their views. This is concerning given that [TAS Su] was clearly in such a deteriorated state, that her direct supervisor tried [to] organise an appointment for [TAS Su] with a General Practitioner on 17 th March 2004. (emphasis in original) 195It would have been evident to the appellant, having been provided with Ms Knox Haly's report in the brief of evidence, that what was being contended was that there had been a failure on the part of the Principal to adequately consult and provide supportive management. When one combines this information with the documentary material applicable to Putland regarding the need for consultation in the context of maintaining a safe workplace, the meaning of "adequate consultation" is apparent. 196The appellant's submissions at first instance demonstrate that the appellant mounted an unsuccessful evidentiary defence but no statutory defence in respect of this pleaded step or measure. 197As with the other particulars, the appellant did not seek any clarification or make any objection in respect of (b)(ii). Yet the complaint on appeal was that the appellant was not given sufficient information in respect of it. For example, the submission was made orally: Who was meant to provide that support so far as the allegation is concerned in (b)(ii)? Was that support meant to be provided by the Principal or was it meant to be provided by someone in management? If it was meant to be provided by the Principal, it doesn't say so. 198We find that particular (b)(ii) of Matter 1392 did not render the Application for Order invalid.
Particular (b)(iii), (iv) and (v) 199Particular (b)(iii) alleged that there was a: Failure to provide social support in the form of adequate consultation and/or supportive management, or leadership when TAS Mary brought to the attention of the Principal, after the Principal returned from chasing the escaped detainees, that during the 10 March 2004 class room incident an urgent request for help went unanswered. 200Particulars (b)(iv) and (b)(v) plead a lack of adequate social support and/or consultation in relation to two other occasions when TAS Mary sought to raise her concerns about the same matters. 201Schmidt J found these particulars had been made out: see liability judgment at [735]-[738]. 202In relation to the terms "adequate consultation" and " supportive management, or leadership", the appellant made the same observations as those made in respect of particular (b)(ii). 203We make the same finding in relation to these particulars as that made in respect of particular (b)(ii). In relation to the term "supportive management", this was used in the Department of Education and Training's document titled "Occupational Health and Safety and Injury Management". Ms Knox Haly referred to the document as follows: On page 2, the list of hazards refers to psychological hazards and lists interpersonal conflict. Interpersonal conflict is the opposite of social support. On page 4, it refers to stress claims being invariably caused by interpersonal conflict. This does not highlight an important distinction of stress claims that are caused by critical incidents, (ie industrial accidents, hold-ups, assaults). Reducing it down to interpersonal conflict obscures the fact that workplace management are responsible for managing that relationship, both between co-workers, and from management to workers. On page 4, it refers to the development and delivery of effective management strategies and well designed learning programs for students have a direct impact on reducing psychological injuries to staff. Discounting an employee's efforts to raise a valid safety concern do not constitute an effective management strategy. Under section 5.1, p 1, it recommends that a principal should "listen and look at what it [sic] happening to maintain individual and team dynamics at optimum level." Discounting employee concerns and abandoning the worksite during the riot is clearly contrary to this suggestion. Under section 5.1, p 2, it says that employees should feel that they are a worthwhile part of an effective unit and aim for: Effective communication procedures and consultative processes. Effective procedures for the management of complaints, where they are acknowledged and incorporated into reviews for workplace improvement. Establish consultation channels for employees with ideas for increasing efficiency or who have legitimate concerns about safety or productivity to express their views. None of the three employees felt that their views were being acknowledged. They certainly felt that there was a lack of effective communication, and this perception was so prevalent for [TAS Su] after witnessing the principal's treatment of [TAS Mary], that [TAS Su] could not raise the issues. This is an indication of how ineffective the management of complaints actually was. On page 5.2, page 3, it talks about the need for supportive management in the risk assessment indicator, and to look at whether people are managed in a supportive, participative fashion. This concurs with my research on the importance of social support from supervisors. The document also refers to the authors Karasek and Theorell (1990) who are leading researchers in the area of job characteristics research and occupational stress. These are researchers who are very influential in my thinking about causes of occupational stress. 204The appellant could not have been under any misapprehension about the term "supportive management" and who it was alleged should have provided that support. 205We find that particulars (b)(iii), (iv) and (v) of Matter 1392 did not render the Application for Order invalid.
Particular (b)(vi) 206Particular (b)(vi) alleged a: "Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when the Principal never sought the views from TAS [Su] about the bomb scare, class room fight and escape on or after 17 March 2004." Schmidt J found this particular had been made out: see liability judgment at [739]-[752]. 207The appellant made the same observations in respect of this particular as those for particulars (b)(ii), (iii), (iv) and (v) above in relation to the terms "adequate consultation" and "supportive management, or leadership". It was submitted: For example, what level of consultation by the Principal was alleged to have been required to prevent or control the risk of TAS Su sustaining the potential risk of developing the psychological injury specified as ' occupational stress ' ? How much consultation and what type of consultation was required? Had these matters been properly particularised, the appellant would have been in a position to consider what defences were available. Without that level of specificity the risk said to be created by this particular was at large and could never be disproved. 208The appellant did not seek any clarification by way of further particulars regarding this particular. Further, the appellant's submissions at first instance show that the appellant mounted unsuccessful evidentiary defences but no statutory defence was mounted in respect of this pleaded measure. 209The level of consultation required and the nature of it was described in the appellant's documented systems and the report of Ms Knox Haly, which had been provided to the appellant before the trial commenced and referred to in the respondent's opening. 210We find that particular (b)(vi) of Matter 1392 did not render the Application for Order invalid.
Particular (b)(vii) 211Particular (b)(vii) alleged a failure to establish a separate OHS committee for the school. This particular was found not proven at [759] of the liability judgment and did not form part of the appeal.
GROUND C 212The appellant abandoned Ground C(i) and C(ii). Ground C(iii) was addressed in the submissions pertaining to Ground G.
GROUND D: Whether her Honour erred in finding charge IRC 1392 of 2006 did not lack certainty, was capable of supporting a conviction and that the particulars were neither ambiguous nor overlapping in nature 213There were a number of matters raised by the appellant under this Ground. First was the issue of "psychologically unsafe place of work". It appeared to be submitted that the requirement in s 8(1) of the OHS Act did not extend to ensuring that employees were kept safe from psychological injury. The duty under s 8(1) is to ensure "the health, safety and welfare at work of all the employees..." There is no basis to confine this duty to physical health safety and welfare. 214We note, in this respect, cl 9 of the Occupational Health and Safety Regulation 2001 provides: 9 Employer to identify hazards (1) An employer must take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer's undertaking and that has the potential to harm the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both. (2) In particular (and without limiting the generality of subclause (1)), the employer must take reasonable care to identify hazards arising from: (a) the work premises, and (b) work practices, work systems and shift working arrangements (including hazardous processes, psychological hazards and fatigue related hazards), and ... (j) the potential for workplace violence. (3) An employer must ensure that effective procedures are in place, and are implemented, to identify hazards: ... (e) while work is being carried out, and (f) when new or additional information from an authoritative source relevant to the health or safety of the employees of the employer becomes available. 215The submission that s 8(1) did not encompass psychological injury is quite at odds with the appellant's policies aimed at protecting employees from psychologically injury consistent with what we would regard as its duty under the OHS Act. 216It appeared to be submitted that resort to the use of the phrase "psychologically unsafe place of work" created uncertainty and ambiguity. Schmidt J said in relation to the term: [625] The charge clearly identified the essential elements of the offence, two of which were conceded, namely that at the relevant time, the defendant was an employer and that it employed employees at its place of work at Putland. The other essential ingredients alleged were that the defendant 'failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary and TAS Su' and, that the defendant's acts and omissions in allowing there to be a 'psychologically unsafe place of work', led to the manifestation of the risk. ... [635] It was the prosecutor's case that if a psychologically unsafe place of work existed, an employer had failed to ensure employees' safety at work, as s 8(1)(c) required. Such a place of work did not provide a safe working environment, which did not risk employees' health. There is obvious force in that argument, particularly having in mind the defendant's written policies, directed to ensuring the psychological health of its employees. 217The phrase did have the potential to confuse; it was novel and unnecessary. It was used as a substitute, in part, for what appears in s 8(1)(c) of the OHS Act, namely: ... (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health (emphasis added) ... 218It would have been advisable for the respondent to have adhered to the words of the statute in order to avoid the controversy that has now arisen over the phrase "psychologically unsafe place of work". In any event, it is tolerably clear, and Schmidt J seems to have been of this view, that what was alleged in the charge was that the appellant failed to ensure the working environment was safe and without risks to health in that the workplace was "psychologically unsafe" as a consequence of the appellant's acts or omissions particularised in particular (b), which gave rise to the risk identified in particular (a), which manifested itself in the manner described in particular (c). 219The difficulty for the appellant is that it left its complaint about the formulation of this aspect of the charge until its final submissions at first instance and even then did not seek to have the charge declared invalid on the ground it was defective or seek orders to have the particular amended. As Schmidt J observed at [627], "[u]ntil final submissions, no problems with the particulars were agitated by the defendant". 220In any event, the use of the phrase "psychologically unsafe place of work" was not such as to create a level of uncertainty or doubt that would warrant taking the view that there was any procedural unfairness to the appellant in failing to be advised of the nature of the charge it had to meet. The appellant clearly understood, as it submitted at first instance: " The particulars of how the workplace was said to be psychologically unsafe are set out in paragraphs (b)(i) - (viii) [sic - (vii)] of the charge." In our opinion, even if there was a technical deficiency, s 16(2) of the Criminal Procedure Act applies. 221The appellant also complained of the difficulty of determining with any certainty what constituted "adequate management support" in Matter 1392. Further, there was the question of what was meant by the failure to "provide social support" in the form of "adequate consultation" by the Principal in relation to particulars (b)(ii) and (vi). 222We dealt with these issues earlier in the judgment. However, the appellant also referred to New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 and, in particular, quoted the following from [69] per Gummow and Hayne JJ as to the difficulties involved in determining with any certainty what would in fact constitute "social support": If, as seems very likely, what one person should do is to give psychological support to another, varies with the individuals concerned and the circumstances that give rise to the need for support, it is evident that the expression has, and can have, no fixed or certain content . There are individuals and circumstances for whom support is best given by the individuals remaining close by each other. Yet in the workplace, support may sometimes best be given by withdrawing to a respectful distance. Allowing a distressed colleague to recover composure without feeling under immediate scrutiny may be the better course. And there may be cases in which support is best expressed by silence rather than the persistently intrusive inquiry about well-being . (appellant's emphasis) 223The first sentence of [69] read, however, "There was no evidence led at trial that suggested what content should be given to this expression [psychological support]." The same cannot be said of this case in respect of the term "social support", where there was the expert evidence of Ms Knox Haly, Professor Tennant and Mr Rees. At [207]-[208] Schmidt J addressed what was meant by social support: [207] 'Social support' was explained in the evidence as encompassing emotional support, provided to help an employee cope with a traumatic experience at work. Such support could be provided by colleagues, supervisors, friends, family or even medical practitioners and counselling services such as the defendant's EAP system. It also encompassed instrumental support, that is the practical means by which employers assisted employees to deal with traumatic experiences at work, which put them at risk of injury. Such support includes policies of the kind earlier described and practical measures such as radios, duress alarms and DJJ support, provided by an employer in a system of work. [208] In light of the expert evidence, it is not surprising that the defendant's paper policies and practices sought to ensure that social support was provided to its employees at work by supervisors, including the Principal, as a means of preventing and reducing occupational stress and resulting psychological injury at work. 224It was further submitted for the appellant that: The risk pleaded was nebulous because it did not allege a direct link to a potential injury but rather to ' an increased risk of the potential for a TAS to develop occupational stress '. That was said to go to the 'state of mind' of an individual TAS but of itself did not constitute a risk to health such as to found an offence pursuant to s 8(1) of the OHS Act. (emphasis in original) 225As we stated earlier, the risk in particular (a) was clumsily expressed; too many words were used to express a relatively simple concept. Nevertheless, the risk in Matter 1392 was that in the absence of or inadequate management support, there was an increased risk of TAS Mary and TAS Su developing occupational stress. The risk to health was the risk of developing occupational stress. There was no need in particular (a) for the respondent to "allege a direct link to a potential injury", although we note in particular (c) it was alleged: " The psychological injuries to [TAS Mary] and [TAS Su] were a manifestation of the risk." 226Even if there was any substance in the appellant's complaint that the risk was "nebulous" it does not appear from the proceedings at first instance that the appellant was unable to deal with the risk allegation. 227The appellant next referred to its submissions at first instance regarding "vocational dissatisfaction": The particulars for the social support charge can be more properly characterised as indicators of the 'vocational dissatisfaction " felt by [TAS] Mary and [TAS] Su and in particular their dissatisfaction with the principal, rather than being causative factors of occupational stress. As noted by Koussa at T370 "Vocational discontent is not necessarily injury or pathology." Nor are emotions such as grief, anger, embarrassment, shame, distress, worry etcetera injuries. (See Morgan v. Tame (2000) 49 NSWLR 21 at 29 (32).) 228On appeal, the appellant submitted: The argument was considered by her Honour at [636]-[639] ... of the judgment where it was held that TAS Mary and TAS Su would be strongly dissatisfied with the principal's approach to their safety, but that was not the relevant issue. Mere dissatisfaction was not evidence of an offence against the Act. Rather the issue for determination ought to be: "... whether there was exposure to a risk to safety which resulted in psychological, or physical injury of the employee who also felt vocational dissatisfaction, as a result ." That formulation by her Honour did not properly reflect the issue raised. The issue was whether the vocational dissatisfaction felt by TAS Mary and TAS Su pre-existed 10 March and whether, as indicated by the medical experts, it could be causative of the psychological conditions of adjustment disorder, mild anxiety and depressed mood. The issue raised an alternative possible causative link to the psychological injuries that manifested in TAS Mary and TAS Su, as diagnosed by Ms Koussa. It also raised the possibility that it was an issue that could never be determined because of the fact that it was not known what appeared first - the injury or the vocational dissatisfaction? If the latter, then on her Honour's reasoning, no contravention occurred, as vocational dissatisfaction was not a contravention by the employer (see [637] of the liability judgment); Although Ms Koussa had formed the view that the injuries she had diagnosed for TAS Mary and TAS Su arose from the incidents on 10 and 15 March she accepted that any employee could decompensate because of a lack of morale or lack of recognition at work. 229The appellant neglected to refer to other parts of the liability judgment dealing with vocational dissatisfaction. Immediately after [650] in the liability judgment, Schmidt J stated: [650] ... The defendant submitted that both TAS Mary and TAS Su had vocational dissatisfaction over matters perceived as putting staff safety at risk, but argued that this was irrelevant to the question of causation. This is difficult to accept. It is not surprising that concerns about the Principal's attitude, clearly a matter of 'social support', when serious safety issues are being raised with her, might cause 'vocational dissatisfaction', if those concerns are dismissed out of hand, even when serious. That such a reaction occurred, in the case of TAS Mary, TAS Su and other employees, cannot sensibly lead to the view that the lack of that support could not also be causally connected with a psychological injury, when later sustained by two of the employees who had that dissatisfaction, in circumstances where their personal safety is put at risk. To the contrary, concerns about safety issues being raised, was one of the factors that managers were directed to take account of, in seeking to identify those at risk of psychological injury, in the defendant's Occupational health and safety management - a guide for the principal or manager policy . The problem was that the policy simply was not in operation at Putland. And further at [741]-[742]: [741] The same cannot be said in relation to TAS Su's reaction to the other events in which she was involved. After 10 March, she was present at meetings when TAS Mary and teacher Ron unsuccessfully tried to pursue their concerns about the failure of the duress alarm system, in the context of TD's behaviour on 10 March. She had herself been involved in what had there occurred. Unsurprisingly, she was concerned about the Principal's response, which was consistent with how concerns she had herself raised about safety issues, had earlier been dealt with by the Principal. [742] While the defendant submitted that these concerns were merely an indication of 'vocational dissatisfaction', it is not possible so to dismiss TAS Su's evidence, that she had also sought to raise her safety concerns, only to have them dismissed out of hand. The Principal agreed, for example, that when TAS Su sought to raise concerns about the composition of detainees in a class, for example, her general response was that evidence had to be provided, going to points, misbehaviour reports and so on; so that if a problem was identified, then steps could later be taken to deal with it. A/P Rebecca then endeavoured to pursue that course on TAS Su's behalf, but could get no resolution in her discussions with the Principal. 230Schmidt J understood the appellant's submission regarding vocational dissatisfaction, but took the view that such dissatisfaction arising from the Principal's failure to deal appropriately with the TAS's concerns, leaving them with a concern for their personal safety, did not mean that such concern could not also be causally connected with a risk of psychological injury. Her Honour did not accept that the particulars in (b) were merely indicators of vocational discontent. Her Honour found on the evidence that the particulars constituted failures on the part of the appellant to ensure safety and that such failures were causally connected to the risk of psychological injury. 231It was further submitted by the appellant there was no cogent evidence put in relation to DJJ staff or school staff of the effectiveness of psychological screening, or, that such screening would have revealed TAS Mary's and TAS Su's vulnerabilities. 232In relation to screening, Schmidt J found as follows: [298] ... Given that the defendant did not conduct any psychological screening of those who it selected for employment at Putland, a practice, on the evidence, adopted by other employers who engage staff who are frequently exposed to acts of violence and threats in their work, plainly the defendant had to approach its obligations on the basis that it could have in its employ, persons who were particularly vulnerable to psychological injury when exposed to critical incidents. ... [801] That submission has to be approached with some caution, it seems to me. On the evidence, unlike other employers, the defendant conducted no psychological screening to identify whether any of its employees were particularly vulnerable to the risk of injury from their repeated exposure to violent and threatening behaviour from detainees. Its policies and systems were thus designed to protect all of its employees, including TAS Mary and TAS Su, from sustaining a psychological injury, no matter what their particular vulnerability to such injury was, given that none of its practical systems were able to ensure that they were not repeatedly exposed to such behaviour. 233Ms Knox Haly gave evidence about screening, which was summarised by her Honour at [223] of the liability judgment: [223] She also explained that this was why the defendant's policies expected managers to behave in particular ways after an incident, because assumptions could not be made as to how people would cope with them. It was also why some employers used employment psychological screening, to identify people with such vulnerabilities. Some employers conducted mental health surveys, to assess whether employees were at risk of injury; some employees were referred to HealthQuest. Some employers sought the assistance of health professionals to assess their workforce, particularly after a critical incident. In a workplace where critical incidents were routine, there was a greater need to have in place a system of support from management, to deal with such incidents. 234Mr Rees, a defence witness, also gave evidence regarding screening. He agreed that if there is no personality screening, an employer must assume that there is a mix of wide personality types and there would have been more vulnerability in some in that class of work. Mr Rees also stated: "I assume that it follows that the provision of pre employment psychological screening such as is done for other government services such as Federal Police would not be necessary for Teachers Aide Special (TAS) employees." Jane M, another defence witness, agreed in cross-examination that you have to assess your occupational health and safety measures by keeping in mind some of the staff might be more vulnerable than others to violence, assault and psychological injuries. 235There was evidence upon which Schmidt J could base her finding that in the absence of screening, a practice adopted by other employers, "the defendant had to approach its obligations on the basis that it could have in its employ, persons who were particularly vulnerable to psychological injury when exposed to critical incidents." 236As to the appellant's proposition that: "Nor was there any cogent evidence put ... that such screening would have revealed TAS Mary's and TAS Su's vulnerabilities", screening as an issue was initially introduced at the trial by the appellant in the context of trying to raise a reasonable doubt or proving on the probabilities that the appellant did not know TAS Mary or TAS Su were vulnerable. It was never introduced by the respondent to argue that it would have revealed TAS Mary's and TAS Su's alleged vulnerabilities. 237The appellant took issue with her Honour's finding at [627] that the particulars of the charge in Matter 1392 were neither ambiguous nor overlapping. The appellant referred, in particular, to (b)(iii), (iv) and (v). Particular (b)(iii) referred to the occasion when the Principal, on 10 March 2004, returned to Putland after chasing escaped detainees. Particular (b)(iv) referred to the occasion when there was an impromptu staff meeting on 11 March 2004. Particular (b)(v) referred to the occasion when there was the Friday staff meeting on 12 March 2004. There was no overlap or ambiguity. 238We find that appeal Ground D is not made out.
GROUND E 239Under this Ground the appellant submitted Schmidt J had misconstrued, in the determination of liability and penalty, the obligations imposed upon an employer pursuant to s 8(1) of the OHS Act and, in particular, the obligations imposed on the appellant as an employer in relation to the risk arising from the acts and omissions pleaded in each of the charges. This Ground relies essentially on how the appellant construed the decision in Kirk . 240The appellant contended that the effect of Schmidt J's decision was that the appellant was required to take steps to remove or control all hazards that it had identified as potentially creating a risk to the psychological health, safety and welfare of its employees. That applied whether or not the risk to an employee's psychological health was latent and, therefore, not knowable or detectable. By taking this approach, namely, that the duty owed to the appellant's employees was the general duty to address the risk at work of a psychological injury, it was submitted her Honour failed to relate that duty to the charges, in the manner required by Kirk . 241In short, it was submitted the approach taken in the judgment to the duties imposed by s 8(1), in effect, required the appellant to negate all possible measures available to remove or control the hazards that may create or contribute to the risk of an employee sustaining a psychological injury. The scope of the duty was not confined to the acts and omissions pleaded in each of the charges. 242The issues raised by the appellant under this Ground, such as her Honour's reliance on screening, the nature of the risk, accumulated trivial stress, the vulnerability of TAS Mary and TAS Su to a psychological injury because of their previous exposure to detainees and vocational dissatisfaction, have all been addressed under the appellant's other appeal grounds. 243Schmidt J went very carefully through the process of considering each of the particulars of the charges individually and considered whether each of the alleged failures to ensure safety had been made out. With minor exceptions, her Honour found the particulars were made out. Her Honour also addressed the statutory defences: see [803]-[843] of the liability judgment. 244It was not the case that her Honour determined that the appellant was required to negate all possible measures that may create or contribute to a risk of an employee sustaining a psychological injury. For example, it was submitted screening of employees was not a measure pleaded by the respondent in any of the charges and did not fall within the subject of the charges, but that her Honour held that as no screening was conducted by the appellant of its employees at Putland, it had to approach its obligations on the basis that it could have in its employ "persons who were particularly vulnerable to psychological injury when exposed to critical incidents." In other words, the submission seems to have been that what her Honour found was that in the absence of screening, the appellant was required to have in place measures to ensure that not only persons of normal fortitude were protected from the risk of psychological injury but also persons who might be particularly vulnerable. According to the appellant, this was inconsistent with Kirk , which held it was not permissible to have a charge that required an employer "to negative the general provisions" of the occupational health and safety legislation and require it to establish that every possible risk was obviated. 245It was not the case that screening prospective employees was a measure relied on by her Honour as part of the appellant's obligations as an employer to address the general risk of psychological injury at its workplace. At [298], in the context of considering TAS Su's particular vulnerability, Schmidt J observed at [801], in the context of asking " How does the statutory defence operate, especially in the context of a charge relating to a psychological injury? " her Honour stated: [801] ... On the evidence, unlike other employers, the defendant conducted no psychological screening to identify whether any of its employees were particularly vulnerable to the risk of injury from their repeated exposure to violent and threatening behaviour from detainees. Its policies and systems were thus designed to protect all of its employees, including TAS Mary and TAS Su, from sustaining a psychological injury, no matter what their particular vulnerability to such injury was, given that none of its practical systems were able to ensure that they were not repeatedly exposed to such behaviour. 246This was not a case of Schmidt J deciding that in the absence of psychological screening the appellant was required to have a system in place that ensured all employees, whether they were particularly vulnerable or not and whether or not their vulnerability was known, were protected from the risk of psychological injury. The appellant was not impermissibly placed in the position, in mounting a defence, of having to prove it was not reasonably practicable to have such a system in order to avoid a general risk of psychological injury. All that Schmidt J did at [801] was observe that as the appellant did not conduct screening, it had in place policies and systems designed to protect all of its employees - policies and systems that her Honour found in relation to TAS Mary and TAS Su, were not effective. 247We find that Ground E of the grounds of appeal was not made out.
GROUND F 248This Ground contended that Schmidt J erred in determining that there was a causative link established between the particularised acts and omissions and the risk alleged in each of the charges. There were eight sub-grounds. 249Grounds F(i), (ii) and (iii) contended that her Honour erred in the consideration of the causative link in each charge in that the causative link was found proven prior to finding the particulars pleaded proven; by taking into consideration a general class of risk and injury, not the risk and injury pleaded; and failing to establish that a causal link was proven between the risk pleaded, the particulars pleaded and the injuries manifested in relation to TAS Mary and TAS Su.
Ground F(i) 250In relation to the first contention, that is, her Honour erred in finding that the causative link proven prior to finding the particulars pleaded proven, the appellant is correct in submitting Schmidt J first considered causation before determining whether the particulars had been made out. We do not understand how, logically, that can be done. The question of causation cannot arise until it has been determined whether or not the defendant has committed an act or made an omission. That is to say, whether the prosecution has proven to the requisite standard the act or omission that it alleges caused a risk to health and safety. 251Schmidt J seems to have proceeded on the assumption that the failures particularised in paragraph (b) of the charges had been made out, then considered whether there was the necessary causal link, and only after that did her Honour turn her attention to the particularised failures. This problem with her Honour's approach is compounded by her approach to the question of causation, which we shall address under sub-ground F(iii).
Ground F(ii) 252The second contention asserted that Schmidt J took into consideration a general class of risk and injury, not the risk and injury pleaded. We have already addressed this issue in relation to all three Matters in our consideration of Ground B of the appeal, finding that her Honour did not err in this respect. Nevertheless, the manner in which her Honour approached the causation issue by failing to explicitly identify each of the failures in particular (b) and how they connected to the pleaded risk, and to speak about the general risk of repeated exposure to violence risk, led the appellant to contend, not unreasonably, there was error. It was not the easiest of tasks to always separate out, in her Honour's liability judgment, whether her Honour was addressing the general risk to staff that was ever-present from the detainees or the risk that was pleaded in particular (a).
Ground F(iii) 253The appellant's third contention was that her Honour erred in failing to establish that a causal link was proven between the risk pleaded, the particulars pleaded and the injuries manifested in relation to TAS Mary and TAS Su. As to the proposition of establishing a causal link with an actual injury, it is not a legal element of an offence under s 8(1) that the prosecution is required to prove such a causal link in order to make out the offence. There is nothing in Kirk to suggest otherwise. Thus, it was not necessary, as the appellant seemed to contend, for the respondent to prove in Matter 1392, for example, that the risk of developing occupational stress actually manifested as a psychological injury. The obligation was to prove that the appellant's acts or omissions, as identified in particular (b), had a causal relationship to the pleaded risk of developing occupational stress: see, for example, State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121.
Appellant's complaints in Matter 1391 of 2006 254The appellant's complaints under this sub-ground in relation to Matter 1391 may be summarised as follows:
Whether extraneous matters taken into account in Matter 1391 of 2006 255As to the first dot point above, Schmidt J did refer to: staff concerns over safety that were found by her Honour to be exacerbated by the building program; a dispute notification to the Industrial Relations Commission; the desire of staff to have a separate OHS committee for the school; the failure to have the paper systems operating; the failure to pay sufficient attention to dealing with psychological injuries as required by the paper systems; and the failure of the Principal to take action when she observed TAS Mary was not coping at work. 256All of the foregoing were mentioned by her Honour in the context of dealing with the causal connection between the appellant's acts and omissions and the materialisation of the risk on 10 March: [378] The evidence did not suggest that the failure to have paper systems operating at Putland was as the result of any particular design, or plan, on the DET's part. To the contrary, DET staff at Putland were informed of various safety policies devised by the DET for its schools, which they were obliged to observe. Staff were required to keep such policies in a folder. Still, on the evidence, in truth, various of those policies were not in operation at all at Putland. Evidence called by the defendant also showed significant departures, by various staff, from other practical systems designed to ensure safety of staff. Further, on the evidence, even what was in practical operation at Putland, did not ensure safety on 10 March. ... [388] That staff employed at Putland would have a concern as to their safety, given the work which they performed and what it required, is thus hardly surprising, given DET policies and the evidence as to the risks to which they were subjected in the ordinary course of their work. Indeed, vigilance as to safety was a necessary, every day part of their work - a required part of the practical system the defendant operated there. It was well known before March 2004, that a number of staff including TAS Mary and TAS Su had ongoing and it would appear, growing concerns that their safety was not being assured at Putland, concerns exacerbated by various developments during the building programme then underway. There were occasions when those concerns were rejected by the Principal, when raised with her by staff, even A/Ps. She discouraged staff from raising or pursuing such matters, insisting that these were matters for the DJJ alone. On the evidence there was a sound basis for safety concerns at Putland, given the Principal's approach to staff concerns, which was inconsistent with applicable DET policies. [389] When the OHS Act was enacted in 2000, a new emphasis was placed upon consultation with employees about safety concerns. Those matters are dealt with in Division 2, Duty to consult, of Part 2, Duties relating to health, safety and welfare at work, of the Act. Section 16 permits such consultation through a safety committee, an elected safety representative, or through other agreed arrangements. There was a safety committee in place for Cobham as a whole, but on the evidence, serious dissatisfaction on the part of DET staff, with that arrangement and a desire for a separate DET safety committee for Putland. That desire arose in a context of a series of disagreements between staff at Putland and the Principal, in relation to a range of safety issues, which had led to the involvement of two unions and a dispute notification to the Industrial Relations Commission. [390] Such concerns needed to be appreciated against the background of the applicable statutory scheme, where s 14 of the OHS Act provided: ... [391] Any commonsense and practical view of the evidence must lead to the conclusion that there was a causal nexus between the defendant's conduct, its acts and omissions and the risk to health, safety and welfare, to which TAS Mary was exposed on 10 March. On the evidence, I am satisfied that this connection was established, to the requisite degree. [392] While the defendant did not create the risk created by TD's behaviour that day, the defendant's acts and omissions certainly increased and failed to control the risk he posed to TAS Mary. It must be concluded that the defendant's failure materially contributed to that risk. (See O'Sullivan at [41] - [51].) [393] This conclusion follows from the evidence of the failure of the defendant's practical safety system on 10 March. It provided for detainees to remain in the control of DJJ staff once removed from class and for DJJ assistance to be provided to classroom staff when called for. This did not occur. [394] The problem was compounded by the approach adopted, once practical systems failed. The evidence showed that on 10 March 2004, sufficient attention had not been paid to dealing with the risk of psychological injuries at Putland, as the various paper policies earlier outlined required. There were other, obvious steps available to the defendant to prevent the risk to which those polices were directed, from materialising - namely, the steps which the policies required, but which were not implemented. [395] In relation to TAS Mary, Ms Koussa recorded in her report, that the Principal had told her, amongst other things, that TAS Mary had worked at Putland for a long time and that it was probably time for her to move on; that her capacity to be resilient in difficult situations was decreasing; and that the Principal had sensed that TAS Mary was feeling more hesitant and less safe at work. Despite this, the Principal also said that she had not seen any signs of distress in TAS Mary, except in 2002, where, after surgery, she had observed her being teary, but she had returned to her usual self, not long afterwards. Nevertheless, in her view, TAS Mary was overdue to look for work elsewhere, for her own well being. [396] Apparently, despite holding these opinions, the Principal never identified that TAS Mary was at any risk of psychological injury and had taken no steps to ensure that her vulnerability to injury, from exposure to behaviour such as that TD engaged in on 10 March, was addressed. Indeed, in her evidence in these proceedings, the Principal said that she had detected no signs that TAS Mary was at risk of psychological injury. Given what she had earlier told Ms Koussa and what the defendant's policies required in relation to detecting and dealing with the risk of psychological injury, that evidence cannot be accepted. 257It is difficult to avoid the conclusion that her Honour considered there was a causal connection between the pleaded risk and matters that did not constitute the pleaded acts or omissions alleged to have caused or contributed to the risk. For example, it was not pleaded in Matter 1391 that staff dissatisfaction or the Principal's failure to identify that TAS Mary was at any risk of psychological injury were the appellant's acts or omissions that caused or contributed to the pleaded risk. 258Whilst it may be accepted that the appellant's failure to implement or follow its paper systems is reflected in the particulars in paragraph (b), what was required was proof that one or more of the particulars as pleaded in paragraph (b) created or contributed to the risk in paragraph (a), not proof of a causal connection between the risk and a failure to implement paper systems. 259Schmidt J did, however, find that: [391] Any commonsense and practical view of the evidence must lead to the conclusion that there was a causal nexus between the defendant's conduct, its acts and omissions and the risk to health, safety and welfare, to which TAS Mary was exposed on 10 March. On the evidence, I am satisfied that this connection was established, to the requisite degree. 260However, in that part of her Honour's judgment dealing with causation, whilst her Honour refers from time to time to the particulars in paragraph (b), there was no systematic attempt to set out precisely how her Honour considered there was a necessary causal connection between those particulars and the pleaded risk. 261The failure to do so, and her Honour's reference to extraneous matters not pleaded as acts or omissions causing or contributing to the risk, would have been fatal except for the fact that in the course of dealing with the causal connection and/or later in her judgment dealing with the acts or omissions in particular (b) as to whether they had been made out, Schmidt J made findings that may be accepted as addressing the causal connection between the particulars pleaded and the pleaded risk. It is to be remembered that it is not necessary that the act or omission alleged to have created the risk has to be the sole cause. It is not necessary to find that the act or omission of the appellant was the cause of the risk arising but rather the question is whether the appellant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way": see O'Sullivan at [41]-[51]; Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 at [301]. In other words, the acts or omissions pleaded need not have been the sole cause of the risk; there may have been other causes, but the pleaded acts or omissions must have been a substantial or significant cause. 262At [409], in relation to (b)(i), Schmidt J found that TD's behaviour in the classroom on 10 March put TAS Mary at risk, such risk being identified as that in particular (a). In relation to (b)(ii) it is apparent from [431] that Schmidt J was of the view that if a DJJ officer had been stationed in the classroom the risk would have been avoided or exposure to it lessened. In relation to (b)(iii) (failure to undertake a risk assessment) it is evident from her Honour's consideration of this particular at [433]-[465] that her Honour accepted the failure to conduct a risk assessment had contributed to the pleaded risk except that part of the particular in relation to class composition. In relation to (b)(iv) all of the detainees were of high risk, yet it is clear from her Honour's liability judgment that notwithstanding this high risk and the fact that the appellant's paper systems addressed the need for adequate information to be provided regarding the risk that each detainee might present, that information, her Honour found, was not provided to teachers or TAS in order that they might understand the threat a detainee might present and take steps to avoid the risk of physical or psychological injury. In relation to (b)(v) her Honour addressed this issue in the context of a causal connection at [379]-[383], [387] and [469]-[473]. In relation to (b)(vi) this was addressed in the context of whether there was a causal connection at [386]-[387]. 263In relation to Matter 1391, we are satisfied that Schmidt J found there was the necessary causal connection between the failures in particular (b) and the pleaded risk in particular (a). 264Despite addressing matters that were not the subject of the particulars in the context of the causal connection, we are not satisfied that error so infected her Honour's findings regarding the causal connection between the pleaded risk and the pleaded failures that we should find the charge not proved on this basis. It is unnecessary that every particular pleaded needs to be made out in order that the charge is proven .
Whether sufficient weight given to appellant's case regarding risk to TAS Mary in Matter 1391 of 2006 265The second dot point in [254] above was that Schmidt J failed to place sufficient weight on certain matters that went to the foreseeability of TD's behaviour and the decision made at the DAP meeting that he was suitable to attend class. The matters were that: the evidence did not establish that there was a physical risk to TAS Mary from TD as she had placed herself between TD and teacher Ron on two occasions on the basis that she was confident TD's anger was directed only at teacher Ron; that the appellant relied on the controls it had in place and the risk assessments made in relation to TD, his past and recent behaviour and the assessment made by teacher Ron that he had no concern about TD attending class on 10 March 2004 based on his previous experience of teaching him; that TD's behaviour towards teacher Ron at the commencement of the class did not cause teacher Ron to exclude him from class or to seek assistance, until the end of class and after recess commenced. Further, that her Honour failed to distinguish that any past behaviour of a violent or threatening manner by TD had occurred at the units and in relation to other detainees. 266We disagree with this contention. There was sufficient evidence for Schmidt J to be satisfied that it was foreseeable TD represented a risk to safety. The evidence included that younger detainees (under 16) were much more impulsive, more immature than the older group and were much more prone to that impulsive acting out behaviour (TD was 15); staff had been warned that detainees may pose a threat to staff as a result of their limited anger management skills and poor impulse control; TD had been involved in a number of fights; a few days before 10 March 2004 TD had been unsettled in class for a few days; TD had been spoken to about appropriate behaviour on numerous occasions but chose to not comply, which suggested he had been misbehaving for a number of days before 10 March 2004. 267At [316]-[318] Schmidt J dealt with the threat TD represented: [316] The defendant relied on TAS Mary's evidence that she had placed herself between TD and teacher Ron, because she was confident that he would not 'stoop to knocking out a woman' and because she realised his anger was focused on teacher Ron. That belief plainly could not establish that TAS Mary was not then at risk of any physical injury, let alone a psychological one. To the contrary, TD had been assessed by the defendant under its own system, as always creating a high risk of injuring its employees; staff were trained to treat all detainees, including TD as being potentially violent; a physical risk had already materialised for teacher Ron in class that day; TD was extremely angry about his points, so angry that he was prepared to return to class to further accost teacher Ron, the second time in the company of another detainee, also classified to be of high risk. While TAS Mary did not believe his anger was directed at her, she did not stand back, leaving teacher Ron to deal with this behaviour, she was actively involved in getting TD out of the class, on both occasions, as she had been trained to do, while waiting for assistance to be provided by DJJ staff. As she described it, she 'tried to use myself as a distraction from his intention of hitting' teacher Ron. [317] The expert evidence was that the best predictor of a detainee's likely behaviour, was a detainee's most recent behaviour. Placing herself between TD and teacher Ron in the circumstances, was undoubtedly brave, on TAS Mary's part. Her assessment at the time, that she was not herself then at risk of physical injury from TD, could not establish that no such risk then existed. It plainly did, on the defendant's own assessment of TD. TAS Mary's report that day, said that: When he was taken out by Amanda (DAP) after the 1st bell, he re-entered the room to demand his points. He was threatening to Ron both physically and verbally. He left and then returned when Ron and I were still in room. I stood between him and Ron and SS stood in doorway. We both felt very threatened. [318] There is no reason to doubt that report, particularly given the evidence led in these proceedings. That TAS Mary felt threatened by TD's behaviour is unsurprising, given the circumstances in which she was placed. He had already been convicted of offences and had been charged with other offences involving violence; he also had a history of violence in custody; he was assessed by the defendant to be of high risk; TAS Mary had been trained to treat him accordingly and he had repeatedly abused, threatened and even assaulted teacher Ron in class that morning. In accordance with her training, it was TAS Mary who acted to persuade TD to leave on both occasions, when he was allowed to return unaccompanied to class. On the second occasion, he was in the company of another high risk detainee, who was standing at the door. It cannot be doubted that this behaviour put TAS Mary at risk. 268At [320], Schmidt J addressed TD's potential to be a threat: [320] In the case of TD, as at 10 March, it was already known to the defendant that he was prone to engage in behaviour which exposed staff required to work with him, to a risk of injury. He was one of the younger detainees at Cobham, described by Mr Muir as more immature and prone to acting out, impulsive behaviour. He was also known to fight with other detainees and to have anger issues. Although he was young, he was a repeat offender and was already serving time. He had been unsettled in class in previous days and had been increasingly involved in acts of violence. 269The proposition that her Honour failed to distinguish that any past behaviour of a violent or threatening manner by TD had occurred at the units and in relation to other detainees is hardly a relevant distinction to have been drawn when one considers his conduct towards a teacher in the classroom.
No particularisation in respect of TD in Matter 1391 of 2006 270The third dot point in [254] above was to the effect that the charge did not particularise any risk specifically in relation to TD. Nor did the charge particularise the behaviour of TD, which gave rise to the risk. The charge referred only to a general risk that was said to arise out of the various pleaded behaviours of all detainees. 271For the reasons we gave earlier in relation to Ground B we do not accept this contention.
No evidence of claim for psychological injury in Matter 1391 of 2006 272The fourth dot point in [254] above was that her Honour erred in finding it could not be doubted the risk of psychological injury existed given the evidence of Mr Armstrong of staff developing psychological injuries. It was submitted that there was no evidence of TAS Mary having made a claim for psychological injury. There was no cogent evidence put about the nature of the psychological injury made in the worker's compensation claims made by other staff, whether the staff involved were TAS or teachers and/or the events that led to the claims and when they occurred. 273That part of the liability judgment the appellant was challenging was at [319]: [319] That Putland was a school where staff were at risk, not only of physical injury, but also of developing psychological injuries from their experiences at work, cannot be doubted, given the documentary evidence. This was confirmed by the evidence of Mr Armstrong. This risk was known to the DET in March 2004, given earlier events at Putland, including injuries sustained by other staff. By 10 March, two members of the TAS staff and one teacher, had taken stress leave. 274What Schmidt J appeared to be relying upon was evidence given in cross-examination by a Mr Armstrong: Q. Certainly. Did you ever establish if anybody went off on such leave in those categories of employees? A. Yes I recall workers' compensation claims for staff at Putland. Q. So were you aware before 10 March 2004 there had already been some staff at Putland ETU had gone off on stress related claims for psychological injuries? A. Yes. Q. So as you understand it, the district office was on notice that psychological injuries were an issue that existed at Putland ETU before 10 March 2004? A. In terms of psychological injuries yes we were aware they were happening. 275There was also other evidence of staff taking stress leave prior to 10 March 2004. We do not consider her Honour erred in relation to what she found at [319].
Appellant's complaint in Matter 1390 of 2006 276In relation to Matter 1390, the appellant repeated its complaint that there were matters not pleaded but taken into account for this charge that were the same as for Matter 1391 and in addition, her Honour referred to the "trigger" created by the School Rules; that "no serious incident report" had been prepared and reported in relation to the incident on 10 March with TD and no counselling was provided to TAS Mary after the TD incident; and no "serious incidents committee" had been formed at the school. It was submitted her Honour found each of these factors materially increased the risk to TAS Mary and TAS Su on 15 March 2004. 277We have undertaken the same process as that undertaken in relation to the causal connection issue in Matter 1391 and we have come to the same conclusion. For example, at [573] Schmidt J refers to "obvious steps" being available to prevent the risk materialising, one of them being "that BH could have been prevented from returning to class on 15 March on the two occasions when he left without permission". And at [589], "that the presence of a DJJ officer [in the classroom] could have been an effective way of preventing the risk which BH posed, from materialising that day." 278Schmidt J did address extraneous matters in the context of her consideration of causality, which was unnecessary and confusing, and her Honour did refer to the general risk of repeated exposure to violence, which added to the confusion. Nevertheless, when the judgment is read as a whole, with particular regard to what her Honour said in the context of causation and in respect of each of the particulars, it is quite evident her Honour had been satisfied that each of the pleaded particulars (we note that particular (b)(v) was not made out in respect of TAS Su) had the relevant causal connection with the risk pleaded in particular (a). At [545] her Honour stated in respect of Matter 1390: [545] I am also satisfied that a causal connection between the defendant's acts and omissions and the manifestation of the risk which BH posed on 15 March, was shown on the evidence. And at [558]: [558] ... While the defendant did not cause BH's behaviour, TAS Mary's exposure to the risk of injury which flowed from that behaviour, was unquestionably the result of the defendant's acts or omissions that day. And at [560]: [560] ... It follows that there can simply be no question that the defendant's acts and omissions were causally connected to the risk to which TAS Mary and TAS Su were exposed on 15 March. 279There can be no doubt Schmidt J understood that the appellant's "acts or omissions" were those particularised in paragraph (b) of the charge, see for example [625]-[626]. Further, we note what her Honour stated at [302] and [305] respectively: [302] ... Thus, a causal connection between the employer's acts and omissions and the consequent exposure to the risk, whether of physical or psychological injury, must be demonstrated. (See, for example, State Rail Authority (NSW) v Dawson (1990) 37 IR 110 at 120-21.) ... [305] The employer's acts or omissions need not be the cause of the risk arising; the offence is committed if they were a substantial or significant cause of the risk, viewed in a commonsense way. (See The Crown in Right of State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [50].)
Appellant's complaints in Matter 1392 of 2006 280The appellant's specific complaints in relation to Matter 1392 may be summarised as follows:
Link between stress and inadequate management support in Matter 1392 of 2006 282The complaint really arises from the unsatisfactory way the risk in paragraph (a) is worded, a matter upon which we made previous comment. The reference in paragraph (a) to "actual risk of the absence of or inadequate management support" was superfluous. It was merely a shorthand way of stating the particulars in paragraph (b). If the particulars in paragraph (b) were proven and the causal connection between those particulars and the risk of developing occupational stress was proven, the words " absence of or inadequate management support" have no work to do. It was unnecessary for the respondent to prove both a causal connection between the particulars in paragraph (b) and the risk of developing occupational stress, as well as a connection between " absence of or inadequate management support" and that risk. 283We noted earlier that the appellant left it until final submissions before any complaint was made about the formulation of the risk in paragraph (a), but it was left at no more than a complaint. There was no suggestion the appellant was unable to deal with the charge as a consequence of the way the risk was formulated, no application to have the charge declared invalid and no application for an amendment. Section 16(2) of the Criminal Procedure Act applies.
Failure to give proper weight to evidence of appellant's experts in Matter 1392 of 2006 284The appellant submitted that the main driver of the appeal was the failure of her Honour to deal adequately with the medical evidence and to accept Ms Knox Haly's view, almost unquestioningly, that the only person who could provide social support was the Principal and in the absence of that support the staff were placed at increased risk of developing occupational stress. 285The appellant highlighted those parts of the liability judgment and Ms Knox Haly's evidence to demonstrate equivocation on Ms Knox Haly's part regarding the impact that inadequate management support could have on a person's psychological condition and compared Ms Knox Haly's evidence, or parts of it, to parts of the appellant's expert evidence of Professor Tennant, Mr Rees and Dr Brown. It was submitted the appellant's expert evidence was to be preferred. 286Schmidt J summarised all of the expert evidence: see at [201]-[211] where her Honour considered the meaning of social support and occupational stress; Ms Knox Haly's opinions at [212]-[229]; Professor Tennant's views at [230]-[240]; Mr Rees' evidence at [241]-[262] and Dr Brown's opinions at [263]-[278]. There does not appear to be any suggestion by the appellant that the summaries of that evidence were wrong in any respect. 287Ms Knox Haly was an organisational psychologist. The respondent submitted her expertise was not put in issue. She had specialised knowledge and practical experience in the area of what is "occupational stress" and "social support" . 288However, as Schmidt J observed at [211]: [211] ... Her views as to the way in which a teacher such as a Principal of a school could undermine social support provided at a workplace, was not shared by experts called by the defendant. 289Nevertheless, her Honour added, "through cross examination, it became apparent that the experts' views had more in common than their evidence in chief at first suggested." At [767], her Honour again observed: [767] ... Experts called by the defendant disagreed with Ms Knox Haly's conclusions, in the reports which they provided. In cross examination, however, it became apparent that the instructions they had been given by the defendant as to the facts, departed in significant respects from the evidence in these proceedings, as to what had, in fact, occurred. I have already dealt with this. 290Other references in the judgment to the expert evidence generally, included the following: [283] That evidence, when considered together with the evidence of what, in fact, occurred to TAS Mary and TAS Su at this workplace, the views formed by treating doctors and other practitioners, that they had been injured and the evidence of the defendant's experts, finally given in cross examination, left no room for doubt that both TAS Mary and TAS Su suffered a psychological injury at work. ... [289] Ms Koussa's opinion and that of the various treating doctors, that TAS Mary and TAS Su's injuries resulted from the experiences at work, was consistent with other evidence, including that of Jayne M and of the Principal. While the evidence of experts called in the defendant's case, questioned in their evidence in chief, whether TAS Mary and TAS Su had suffered a psychological injury, given their evidence in cross examination. I am well satisfied that the prosecutor established to the requisite degree that those injuries were sustained. ... [490] Of necessity, the expert opinions expressed, thus rested on the factual information provided to them. The defendant's approach to those facts, departed in a number of significant ways from the facts found as the result of these contested proceedings. The result was that the opinions expressed in various written reports, were of more limited assistance than they would have been, had there been no question as to the events of 10 March. [491] Also to be considered is that in cross examination, the experts agreed with various propositions put to them by the prosecutor, which threw a different light on the risk of psychological injury, flowing from what TAS Mary experienced that day. ... [664] It is convenient to observe at this point that, of course, each of the expert's opinions and conclusions must be considered in the light of the conclusions reached on the evidentiary contests between the parties. That must have an impact, given that the experts each gave reports, expressed opinions and were cross examined, before those conclusions were reached. [665] Given these controversies, initially, from the written reports, it seemed that there was a substantial gulf between the opinions of the various experts. Nevertheless, those differences diminished in cross examination, as I earlier explained. ... [816] Finally, the expert evidence led by the defendant, which sought to demonstrate that normal fortitude would have precluded any injury resulting from these events, was premised on a factual basis provided by the defendant, which departed in various ways from the evidence as to what had, in fact, occurred on 10 March, as I have explained. This meant that in cross examination, when asked about the events as they have been found to have occurred, the experts made concessions which preclude a conclusion that it had been demonstrated that a person of normal fortitude, exposed to TD's behaviour on 10 March, would not have suffered any injury. 291Reference in the judgment to Professor Tennant's evidence included the following: [236] Professor Tennant regarded none of the events he dealt with as being of clinical significance; morbidity was unexpected and that TAS Mary's anxiety disorder was inconsistent with the stressor. While TAS Su had been diagnosed with PTSD, his view was that the symptomatology was a mix of depression and anxiety, with some post trauma features. He raised the possibility of exaggeration, in her context. I am unable to accept these conclusions, having heard the evidence as to what TAS Su was exposed to and the evidence of the medical experts, who had examined her and Professor Tennant's evidence, in cross examination. ... [239] In cross examination, while the Professor expressed the opinion that the Putland safety system was an excellent one and that even excellent systems on occasions broke down, it became apparent that he was not aware of the difficulty with the radio system at Putland. The Professor was also unaware that the Principal suppressed discussion of the events of 10 March. In his opinion, after a significant crisis staff should discuss the issue, so that safety issues could be dealt with. ... [488] The expert evidence called by the defendant, sought to establish that it was not possible for the defendant to have predicted TAS Mary's vulnerability to any psychological injury, and that it could not have been predicted that the events of 10 March would have led to such an injury. Professor Tennant, for instance, expressed the opinion that while it was a stressful day, it was not of such significance as to indicate psychiatric morbidity and would not cause enduring psychological symptoms in the average person, although his view altered somewhat, given the different version of the events in question, put to him in cross examination. [489] In this case it was necessary to approach the expert evidence with some caution. There were numerous issues between the parties as to what had occurred on this day. While there was a contemporaneous report as to TD's behaviour, it did not deal with the entirety of the problems encountered by the staff, as the result of the failure of the safety systems that day. Despite what was reported to the defendant by Ms Koussa, the defendant disputed that such failures had occurred. That was so, even though it had failed to conduct an investigation into the incidents which occurred with TD that day, in TAS Mary's class, as its own policies required. ... [498] In the General Education class that day, despite having engaged in behaviour which would have had the result of him again not earning maximum points, BH was removed and then returned to class. There he learned that he would not earn maximum points. He then engaged in behaviour which exposed the staff present in class, including TAS Mary to the risk of injury. Again, TAS Mary, attempted to calm BH down. She failed. BH's behaviour included throwing a chair with considerable force at teacher Ron, narrowly missing his head. With difficulty, he was then removed from class. Professor Tennant's opinion, that this incident was trivial, simply cannot be accepted, on the evidence. Indeed, in cross examination, he proffered the opinion that a detainee throwing a chair with some force at a teacher's head and narrowly missing him, would probably be a police charge. ... ... [520] It was Professor Tennant's evidence in cross examination, that a past history of significant violence is an important predictor of violence in custody. Violence in custody would also confirm the potential danger of such detainees committing actual or threatened violence to staff, while at Putland. Professor Tennant also said that the nature of the violence or threatened violence in which a detainee had engaged, had to be taken into account, in making any assessment of risk. ... ... [643] It is in that light that certain of Professor Tennant's evidence in cross examination becomes particularly relevant. He agreed for example, that the defendant's written safety policies ought to have been implemented at Putland. He agreed that managers ought to have been trained to recognise employees who were not functioning or who were showing signs of distress and that they should have done something about such a situation, if it was identified. He also understood that staff attended regular meetings where they had 'every avenue to discuss critical incidents.' Even the Principal's evidence established that there was no foundation for that view of how Putland operated. ... [648] Dr Lamarque's evidence was that on his understanding, TAS Su had functioned well and coped at work until March 2004. She then had concerns about safety issues and was not comfortable, but it was when she witnessed the assault on 17 March, that she finally had a very strong reaction which developed into post traumatic stress disorder. That view was entirely consistent with those of the Principal and finally of Dr Brown and Professor Tennant in cross examination, as to how her illness could be explained, given her experiences at work. The proper safety systems designed to detect and prevent psychological injury to those becoming increasingly at risk of such injury, was simply not operating at Putland. ... [716] Even on Professor's Tennant's approach, the conclusion that necessary management support was inadequate in this period to ensure that repeated exposure to behaviour which put staff at risk of psychological injury, did not materialise such injury, was unavoidable. He agreed in cross examination, that depending on the severity of the behaviour, belittling or bullying staff who sought to raise safety concerns in meetings, would make a workplace psychologically unsafe, particularly if that person was the sole person who was picked on in that way ... ... [768] In the result, in cross examination it was conceded, for example, by Professor Tennant, that the Principal's approach to the safety issues brought to her attention by A/Ps such as A/P Rebecca, was unhelpful. That no action was taken to deal with these issues was also unsatisfactory, as was the Principal's refusal to give TAS Mary any answer to the serious safety concerns which she sought to raise with her. While Professor Tennant insisted that this was not unsafe, merely poor communication, that was not Dr Brown's view and is a view which I cannot accept on the evidence. Professor Tennant accepted that it was unsafe not to implement safety procedures and to fix the duress alarm system. I am satisfied that the failure to implement available controls, which would have prevented psychological injury from materialising, despite the repeated acts of violence and threats of violence to which staff were exposed to, can leave open no conclusion other than that the psychological injuries sustained by TAS Mary and TAS Su resulted from what they were exposed to at this workplace. There can be no doubt that those injuries materialised as the direct consequences of the defendant's acts and omissions. 292Reference in the judgment to Mr Rees' evidence included the following: [254] It was apparent from Mr Rees' report and his cross examination, that there were difficulties in his appreciation of what various of the defendant's written safety policies required and their operation. For example, he agreed when they were put to him, that they contemplated that the defendant's staff was at risk of psychological injury, thereby demonstrating its foreseeability and that TAS Mary was entitled to seek the support of the Principal, to deal with the events of 10 March. He did not accept, however, that the Principal failing to deal with the matter raised with her, necessarily put TAS Mary at risk of injury; she had others who she could turn to, such as her A/P, although he agreed that it was then important for the A/P to get answers to the questions she raised with the Principal. In re-examination, he explained that for some people involved in a critical incident, if they are given accurate information, they take support from that and it helps them. He agreed that there needed to be delegation from managers such as a Principal, in relation to such matters. ... [256] Mr Rees was not aware of the concerns raised by the PSA at Putland as to bullying, harassment and intimidation of staff, which he agreed employees should not be subjected to, nor should they be belittled for raising matters of safety. Mr Rees regarded that if this had occurred, it was inadequate social support and that such treatment was a breach of the obligations which the OHS Act imposed. He regarded the matters raised by the PSA as being an important warning sign of an environment where psychological injury was a potential danger. He also agreed that employers needed to have systems in place to monitor and keep an eye out, knowing that some employees with such injuries would not speak up, but he understood that the defendant's policies in this respect were operating. He agreed absenteeism was one sign of potential injury and no absenteeism and attending work punctually was a sign that an employee was coping. 293Reference in the judgment to Dr Brown's evidence included the following: [267] In cross examination, it became apparent that Dr Brown was not aware of the difficulties with the radio system at Putland and that he had not been provided with various of Ms Koussa's reports, or some other medical reports. 294The point in quoting these extracts from the liability judgment is to show that there were findings of concessions made by the appellant's experts in cross-examination. The respondent submitted the appellant's submissions on appeal did not adequately deal with the implications of these concessions. 295Whilst her Honour acknowledged some of the appellant's criticisms of Ms Knox Haly had a foundation, in weighing the competing evidence, including that given in cross-examination, it is apparent that in relation to the critical issues for determination, Schmidt J preferred the evidence of Ms Knox Haly and the other prosecution expert witnesses where there was a conflict. 296The evidence was that TAS Mary had witnessed violent incidents prior to March 2004. These included a student assault in a class in 2003; one where she had sought help from the Principal with a detainee who had thrown chairs at a window in class, but the Principal told her that she was too busy to assist: see [761]. TAS Mary had sought medical attention because she experienced difficulty in sleeping afterwards, although she did not make the defendant aware of this: see [804]. TAS Su had been involved in various incidents before March 2004, one very serious in 2003, which she described as a "blood bath": see [838]. There was also the bomb scare incident that allegedly affected TAS Su, that incident occurring outside the charge period. 297Schmidt J considered she was entitled to take these incidents into account despite it falling outside the charge period because of the evidence regarding cumulative stress and for the purpose of assessing the potential for TAS Mary and TAS Su to be at increased risk of developing occupational stress. We do not disagree. However, we do note that apart from TAS Mary paying a visit to her doctor after one incident there was no external indication that the earlier incidents had affected either TAS Mary or TAS Su such that these incidents increased their vulnerability to a risk of psychological injury. 298In addition to the earlier incidents, TAS Mary was involved in two other incidents within the charge period, they being the 10 March incident involving TD and the 15 March incident involving BH. TAS Su witnessed the struggle in the quadrangle following the BH incident in the classroom on 15 March and was present when the classroom fight occurred on 17 March. 299The charge in Matter 1392 does not, however, refer to any risk arising out of the 15 March incident and despite counsel for the respondent contending in his opening he sought to indicate that the incident on 15 March was part of the charge in Matter 1392, no amendment was sought or made, no relevant clarification was offered by the respondent in replying to the request by the appellant for further and better particulars and the appellant proceeded at first instance on the basis that the 15 March incident did not constitute any part of what was pleaded in Matter 1392. Schmidt J, therefore, erred in having regard to the 15 March incident in the context of the charge in Matter 1392 and on that basis finding that particular (vi) had been made out: see [743], [745] and [752]. 300The charge then particularises four instances of failure by the Principal to provide social support in the charge period to TAS Mary and one instance (involving three separate incidents) in respect of TAS Su (particular (b)(i) and (b)(vii) were not made out). 301The respondent's case was essentially that because the Principal failed to provide social support to TAS Mary on these four occasions, and to TAS Su because she never sought the views of TAS Su about the bomb scare, classroom fight and escape on or after 17 March 2004, TAS Mary and TAS Su were placed at increased risk of developing occupational stress and, indeed, did suffer psychological injury as a consequence of being put at risk. What the respondent had to prove was that it was these failures, and not being subjected to acts or threats of violence, that caused them to be put at risk in Matter 1392. 302What Schmidt J should have done in considering whether there was a causal connection, was to consider each of the particulars in paragraph (b)(ii)-(vi) and determine whether any or all of them was a substantial or significant cause of the increased risk of developing occupational stress, or the failure materially contributed to that risk. In doing so, her Honour was required to have regard to the competing expert evidence about whether or not the alleged failures caused or contributed to the risk. Her Honour was also required to find the causal connection proven beyond reasonable doubt. Her Honour did not undertake this task in any structured or systematic way. 303In undertaking the task that should have been undertaken by her Honour, we should dispose immediately of particular (b)(ii). The particular alleged the Principal failed to make herself aware of the incident on 10 March 2004. One wonders how there was a failure to adequately consult about the incident when the Principal was allegedly unaware of it. But the evidence was that the Principal was aware of the incident. At [731] her Honour stated: [731] In her evidence in chief, the Principal said that on 10 March, she had a conversation with teacher Ron, after her return from the pursuit of the detainees, in which he told her of TD snatching a piece of paper from him, insulting him and pushing a table into his stomach. She advised him that this constituted assault, was a chargeable offence and should be dealt with in a level 2 misbehaviour report. It was, but no charges were laid and the matter was never dealt with, or even investigated by the defendant. 304The particular did not allege there was a failure by the Principal to take action (which it could not have done given it alleged the Principal was unaware), so her Honour's observation at [731] that the matter was never dealt with is irrelevant. 305In any event, it is difficult to accept that even in the circumstances of this case that it could be held to have been proven beyond reasonable doubt that a failure by the Principal to make herself aware of something caused TAS Mary to be placed at risk of developing occupational stress and consequently suffered post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders. Ms Knox Haly gave the following description of the criteria set out in DSM IV for post traumatic stress disorder: To meet the criteria for post traumatic stress disorder, an individual must be exposed to a critical or traumatic incident. Critical or traumatic incidents are those where the individual experienced, witnessed or was confronted with that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others (DSM-IV-TR 2000). 306We find that there was no causal connection between particular (b)(ii) and the risk. 307We should also deal at this point with particular (b)(vi), which alleged that the Principal failed to provide social support to TAS Su when she never sought TAS Su's views about the bomb scare, the escape and the classroom fight on 17 March. 308In relation to both TAS Mary and TAS Su, Schmidt J stated at [672]: [672] ... The Principal also repeatedly rebuffed attempts to raise such matters directly with her, even in relation to the system failures on 10 March. The evidence clearly showed that the required management support was not provided at Putland, at the relevant time, so far as TAS Mary and TAS Su were concerned. 309TAS Su never approached the Principal to be rebuffed. After the incident on 17 March TAS Su was relieved from duty and AP Rebecca made arrangements for her to see a doctor, which she did. The Principal stated in her evidence regarding TAS Su: Q. Do you recall her on the last day she was there or these days when she would come back after this incident? A. I recall she was there. I recall that for most - I recall that I arranged for her not to be the sole TAS member supporting a teacher during that period. I recall that I organised for her to have time where she was not on duty in the classroom at all. And I recall speaking to Rebecca and saying words to the effect that I was giving Rebecca time to speak to Sue and see what her issues were and resolve them and support her. Q. Why did you organise that she was not to be a sole TAS teacher when she came back? A. So that she didn't have that sole responsibility understanding that she had been distressed and had had time because she was distressed by what had occurred and was suffering from some psychological distress. Q. Why did you organise for her not to have any duties in classes for some parts of the day? A. For that same reason. Q. Why did you speak to Rebecca about TAS Sue? A. Rebecca was TAS Sue's supervisor. 310It is evident that the Principal was not disregarding TAS Su's distress following the classroom fight. Further, in relation to the fight on 17 March, Schmidt J found at [750]: [750] The steps finally taken after the incident on 17 March, did lead to TAS Su receiving medical attention. By that stage, the injury had been sustained. Had proactive management and social support been provided earlier, the injury may have been avoided. That was the crux of Ms Knox Haly's evidence. The absence of such support increased TAS Su's vulnerability to the risk of injury. 311If TAS Su had incurred the injury by 17 March, there could be no causal connection between a failure by the Principal to seek TAS Su's view about the fight "on or after 17 March 2004" and an increased risk of developing occupational stress in the form of post traumatic stress disorder or major depression. 312As for the bomb scare, Schmidt J found: [740] That TAS Su was concerned by the fact that there had been a bomb scare, shortly before the escape on 10 March, cannot be doubted. TAS Su's evidence in relation to what occurred in relation to the bomb scare, departed, however, from that of other witnesses, including that of TAS Mary and various A/Ps. On all of the evidence, I am unable to conclude that the way in which this situation was dealt with by the Principal, can have been a matter which, on any view, was one likely to have given rise to the risk of psychological injury for TAS Su. She was certainly dissatisfied with the Principal's communication with staff in relation to that situation, but her view was not one which most other witnesses shared. 313In relation to the escape, at [101] Schmidt J observed that: [101] A serious incident report was provided by the Principal in relation to the escape of a number of detainees from Putland on 10 March. The serious incident report in relation to the 10 March incident indicated, amongst other things, that: An AP and the principal responded to teachers' request for support during the session. ... 314The evidence of the Principal was that in relation to the escape she had left the investigation to the DJJ because it had ultimate responsibility for the safety and security of the detainees and because she was aware that the escape occurred in part because a teacher had not secured a bolt in a classroom before leaving for recess. The Principal was attempting to protect the staff member from criticism from other staff for that behaviour. This was said in cross-examination of the Principal : Q. I am asking you; you said it was not appropriate to I think the words you used - I am asking you to answer that question, why wasn't it appropriate? A. To my view it was not appropriate because the meeting was a whole school staff meeting so the whole staff were present. The information that I had was that it was the actions or lack of actions of particular staff members in supervision of students that had contributed to the escape and that that information would certainly become public knowledge at that meeting and would have no positive but could have a very negative effect on those particular individuals to be publicly humiliated at a meeting like that were the events to be analysed by a school staff meeting. 315On returning from the pursuit of the escapees with two DJJ officers, the Principal had attended the DJJ administration area and was informed by DJJ of the mechanism of the escape. She then attended a meeting in progress and informed the staff that the DJJ was conducting an investigation. 316It may be accepted that TAS Su was concerned about the escape, although she was not placed in any physical danger by it and was told it was under investigation. We note TAS Su did not tell Dr Edwards, her treating medical practitioner, she had been distressed by the escape. We also note that the Serious Incident Report for the escape on 10 March 2004 indicated that the school counsellor was to attend on 11 March 2004 to provide support to staff. 317There must be reasonable doubt that any concern TAS Su harboured about the Principal not seeking her views about the escape (noting that TAS Su had not asked for her views to be heard) was a substantial or significant cause of an increased risk of developing psychological injury. 318In relation to particular (b)(vi) we find that the necessary causal connection was not made out. 319We turn to TAS Mary. Particulars (b)(iii)-(v) alleged a failure to provide social support to TAS Mary on any of three separate occasions: (i) after the Principal returned from chasing the escaped detainees; (ii) on 11 March at an impromptu staff meeting when TAS Mary attempted to discuss safety issues with the Principal; and (iii) when TAS Mary attempted to raise and discuss matters with the Principal at the next weekly staff meeting after the 10 March 2004 classroom incident and escape incident. 320Because the allegation in these three particulars was, in effect, that the Principal failed to provide the social support, regard should be had to the evidence about whether such a failure by a single individual in a leadership position could cause an increased risk of developing occupational stress. 321It was Ms Knox Haly's opinion in her report that it was the Principal's failure to provide social support that "added to" TAS Mary's and TAS Su's "vulnerability to occupational stress related clinical conditions". It was this opinion that was the cornerstone of the respondent's case. Moreover, it is reasonable to conclude that the report of Ms Knox Haly and the literature she relied upon in expressing her opinions, carried great weight with her Honour in relation to the risk of psychological injury occurring and being manifested in the injuries sustained by TAS Mary and TAS Su. 322In cross-examination, Ms Knox Haly accepted that she had not taken into account in her report that a supervisor may be a "very supportive person" in relation to critical issues. That is, she had not had regard to support for TAS Mary from AP Rebecca or Teacher Ron. Ms Knox Haly was then asked whether she had taken into account the existence of the staff welfare officer and she replied she had, but: I knew that the staff counsellor was there, but you know again they are just, in my experience, they are just a minor player. It's leadership, leadership, leadership in every case. If that relationship isn't working then not just the relationship system but many other systems begin to fail quite dramatically. I can't stress how crucial that is. 323Ms Knox Haly effectively discounts, almost entirely, social support that was available from and was provided by other persons and concludes that if the Principal does not provide it, it will increase vulnerability to occupational stress. In other words, unless the social support is provided almost exclusively by the Principal a risk of psychological injury arises. 324The evidence relating to the social support that was available to both TAS Mary and TAS Su in its various manifestations may be summarised as follows:
Ground F(iv), (v) and (viii) 356The appellant made no submission regarding Ground F(v), which pleaded that her Honour erred b y failing to apply the test of beyond reasonable doubt to the acts and omissions pleaded and t he risk of psychological injury. 357Ground F(iv) was that her Honour erred by misunderstanding and misapplying the concepts of "correlation" and "causation" in relation to factors that could contribute to psychological injury. Ground F(viii) was that her Honour erred by failing to distinguish between the causative factors linked with vocational dissatisfaction and those linked with occupational stress in determining that the causative link was established between the risk, the particulars and the injury to TAS Mary and TAS Su. 358We have already dealt with the issue of causation and correlation. Given our finding that there was no relevant causal connection between the acts or omissions of the appellant and the risk in Matter 1392, it is unnecessary to deal with ground F(viii).
Ground F(vi) 359The issue under this sub-ground was whether her Honour could properly rely on a "cumulative exposure" of TAS Mary and TAS Su to a general risk of detainee behaviour that was violent, threatening and anti-social to establish a causative nexus between the potential for psychological injury to occur and the injury manifested, when "cumulative exposure" was not pleaded, particularised or established on the evidence in each of the charges. 360In view of our findings regarding Matter 1392, it is only necessary to deal with this issue in relation to Matters 1390 and 1391. In that regard, Schmidt J did not find that the risk to which TAS Mary and TAS Su were subjected was the risk of cumulative stress or cumulative exposure. Certainly, her Honour did take into account the effect on TAS Mary and TAS Su of cumulative exposure to acts of violence by detainees. 361However, this needs to be understood in its proper context. There is no doubt, and it does not appear to have been put in issue by the appellant, that the detainees at Putland constituted a risk to staff, a risk that was ever present. As we earlier observed, TAS Mary and TAS Su were subjected to violent behaviour by detainees in their period of employment at Cobham. Their experience in that respect was a matter that Schmidt J was entitled to take into account in assessing whether they were at the risk of psychological injury that was pleaded. 362The respondent's 11 December 2006 reply to the request for further and better particulars referred the respondent to, inter alia, "the health professional reports attached to the affidavit of [TAS Mary]" and "the health professional reports attached to the affidavit of [TAS Su]." As seen below, these reports confirmed that the respondent relied upon risk of injury due to cumulative incidents or exposures. 363As for the 10 March 2004 TD incident, 15 March 2004 BH incident and TAS Mary, the issue of cumulative stress or cumulative exposure was not something that would have taken the appellant by surprise. The appellant knew that the respondent's case was to include and did ultimately include reports from medico-legal practitioners engaged by the defendant's insurer. The medico-legal reports from the defendant's insurer include: (a) Report by Consultant Psychologist, Ms J Koussa, 4 June 2004, Pre-Liability Assessment: When asked about the reason that [TAS Mary] went off work, Ms Rebecca B said that she believed it was a culmination of issues and that the critical incident on Monday 15 March, 2004 involving the student, [BH], was "the straw [that broke the camel's back]" after a build up of factors. Further, see the Report under "10.1 Accumulation of critical incidents at Putland ETU and perception of lack of support regarding staff safety by upper management", "11 Conclusion of Contributing Factors" and "Overall Summary and Opinion". (b) Psychiatrist, Dr Klaas Akkermann, 14 January 2005 report: Under "History" - "The date of injury was 15 March 2004. She said there had been a lot of close ones - this was just one too many. There were major renovations and as a consequence the classes were being amalgamated ..." (c) Psychologist, Ms Shelley Bannon, 11 February 2005 report: [TAS Mary] reported that there has been an accumulation of various situations, which have placed staff at risk, prior to the one reported above. She said that she feels the incident in March 2004 was just 'the straw that broke the camels back' She identified previous incidents have included: The radio system "jamming" when she called for urgent assistance Students after violent physical altercations with one another being allowed to return to class without any conflict resolution. A lack of crisis management after three students escaped. A lack of appropriate training for managing conflict and violent behaviour. (d) Psychiatrist, Dr Strum, 9 June 2006 report: The last straw was an incident involving a student, [BH], who made a lot of trouble. He was abusing the teacher who was in charge of the class, he took a chair and swung the chair at the teacher, missing him by a whisker. The situation was ongoing. [TAS Mary] was not personally attacked but she became very distressed by this incident which was certainly not an isolated case. ... Three of the inmates had escaped during 2004, one was recaptured and it upset everyone very much. ... There were problems with students and these were ongoing. She was not listened to when she complained about safety issues. The union became involved. There was an incident with a student [BH] which was terrifying for her and which distressed her to the extent that she developed an illness. ... I believe that work is a substantial cause of her illness and I believe that there was no other factors (sic) contributing to her present illness. (e) In addition, there was evidence from a health practitioner, Psychologist, Mr Chris Proberts, who treated TAS Mary. This evidence was in the form of interview notes made by Ms J Koussa that were tendered and explained through Ms Koussa: "... his diagnosis is not only from that incident but also from cumulative incidents - cumulative from other incidents, meaning that [TAS Mary] had experienced a series of critical incidents over time." The notes were also later adopted in a witness statement made by Chris Proberts. 364As for TAS Su, the appellant knew the respondent relied upon reports that were from medico-legal practitioners engaged by the defendant's insurer: (a) Report by Consultant Psychologist, Ms J Koussa, 17 June 2004 Pre-Liability Assessment and, in particular, under "10.1 Accumulation of critical incidents at Putland ETU and perception of lack of support regarding staff safety by upper management", "11 Conclusion of Contributing Factors" and "Overall Summary and Opinion". (b) Psychiatrist, Dr Graham Edwards, 23 February 2005 report: She then spoke of an accumulation of incidents that had been occurring in the many months previously. She said there were fights going on all the time. She said that that was the nature of the place. She said there were many issues of staff safety. Before Christmas particularly the number of dangerous events such as boys pushing over bookcases in the library, occasion when there was an extremely distressed boy unable to control himself being handcuffed, she witnessed horrible assaults on staff and she said there were always boys verbally assaulting you or abusing you or throwing books at you. She believed it was becoming worse in the preceding several months. She said that she also believed that her opinions about stressful events were not being properly listened to by her supervisors. She felt the environment had become not safe, there was much class crowding and improper mixing of ethnic groups. ... Her employment, with the very stressful events described in the associated documentation during her employment are the prime factors for the current presentation. 365Evidence from health practitioners who treated TAS Su confirmed that the respondent's case always included reliance upon risk of injury due to cumulative incidents or exposures: (a) Psychologist, Mr Pierre-Louis Lamarque, 26 May 2004 report: [TAS Su] has witnessed and directly experienced a number of traumatic situations in her work setting. These include verbal threats of physical harm, witnessed severe violence between students and hearing of colleagues being physically assaulted. These situations have occurred during the three years that [TAS Su] has been employed at the Putland Education Centre. They have a cumulative effect that eventually led to [TAS Su] developing Post-Traumatic Stress disorder after witnessing a serious incident between two students on 17/03/04. (b) Psychiatrist, Dr Enda P Bannan, 7 May 2007 report: Several incidents occurred at work in March of 2004. ... Finally, a few days later a fight broke out in her classroom between two boys in her class. This event was the fourth incident that occurred in Putland in less than three weeks. [TAS Su] felt that this was "the straw that broke the camels back' She felt that the whole place was unsettled and unsettling. She didn't know what was going on, and the staff were not given any explanation as to what was happening. There was so much going on: so much tension. ... I believe the incidents at Putland caused her symptoms. ... 366Ground F(vi) was not made out.
Ground F(vii) 367It was submitted by the appellant that one of the key findings made by her Honour in determining the causative link was established in each charge went to the issue of whether the appellant had notice of a prior vulnerability on the part of TAS Mary and TAS Su. Referring to [671] of the liability judgment, the appellant submitted that prior notice was held to arise from the appellant's own paper systems and the knowledge that an employee may be unaware they were at risk. That was why an employer had to act in a proactive manner to detect employees at risk of cumulative stress, or any other psychological injury at work. 368The appellant submitted there was insufficient evidence for the finding that there was sufficient notice to the appellant that both TAS Mary and TAS Su were vulnerable to a psychological injury prior to 15 and 17 March; the policies and documents of the appellant's did not establish that it had prior notice, contrary to what was held. 369This ground of appeal relates to Matter 1392. The appellant's reference to [671] of the liability judgment is a reference to her Honour's consideration of the question of causation only in Matter 1392 in the context of the respondent's contention that it had been demonstrated that the risk of psychological injury being sustained by staff such as TAS Mary and TAS Su, was increased by the absence of, or inadequate, management support being provided to employees at Putland, to help them cope with what they were being exposed to, when working with detainees in class. At [669] her Honour noted that it was the prosecutor's case that the expert evidence showed a body of literature and research into the link between such social support and its ability to mitigate occupational stress and employee susceptibility to psychological injury. At [670]-[672] her Honour stated: [670] It was the defendant's case that the literature suggested that psychological injury could be linked to specified factors in a workplace, (alone or in combination), but that the mere existence of such factors did not establish the necessary causative link, for the purpose of criminal proceedings. General indicators such as staff morale, complaints, absenteeism, workers compensation claims, incident reports, school atmosphere and questionnaires were relied upon in the prosecution case, it was argued, because it had failed to establish any indicators from either TAS Mary or TAS Su, that were sufficient to have alerted the defendant that they might be at risk of injury, at the relevant pleaded dates. [671] I am unable to accept that argument. The defendant's policies recognised that its employees were at risk of psychological injury. Consistently with the requirements of the OHS Act, its policies also envisaged that staff would be able to raise and have safety concerns dealt with. It was the common view of the experts that management support, when employees had such safety concerns, would assist them in coping with what their work confronted them with, so as to prevent injury, although there was disagreement between them as to whether what was in place at Putland, provided the necessary support. Plainly, the provision of such support was a practical, proactive way by which the defendant could have protected its employees from sustaining a psychological injury. (See WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85.) [672] The evidence clearly showed that various of the defendant's paper policies, as well as various of its systems, were designed to ensure that adequate management support was provided to its employees, so as to ensure their safety and to prevent psychological injury, given that the risk which detainees' violence and other threatening behaviour posed, could never be entirely precluded. The implementation of these policies at Putland depended on the Principal. It was with this evidence in mind, that Ms Knox Haly's view, that even good social support provided by supervisors such as an A/P, could be undone by the absence of such support from a Principal, must be considered. To my mind, that is not only obvious, as a matter of logic, but on the evidence, an unavoidable conclusion. The defendant's practical system required safety concerns to be raised by a TAS with an A/P, yet the Principal dismissed and did not deal with these concerns, when raised with her by A/P Rebecca, who was TAS Mary and TAS Su's supervisor. In their evidence they each described their attempts to have their supervisor raise their concerns with the Principal. A/P Rebecca's evidence confirmed her failure. The Principal also repeatedly rebuffed attempts to raise such matters directly with her, even in relation to the system failures on 10 March. The evidence clearly showed that the required management support was not provided at Putland, at the relevant time, so far as TAS Mary and TAS Su were concerned. 370We have already determined that Schmidt J erred in finding that there was a causative link in Matter 1392 and, therefore, it is unnecessary to consider ground F(vii) further in that respect.
GROUND G AND C(iii) 371The appellant submitted Schmidt J misconstrued the provisions of s 28 of the OHS Act in determining that the defences were not made out and the charges in Matters IRC 1390, 1391 and 1392 of 2006 were proven. In particular, it was submitted, her Honour misconstrued in her determination that the defences were not established: (1)By requiring the defendant to prove that it was not reasonably practicable to implement all available measures, being measures for which it was not charged and which did not fall within the acts and omissions particularised in each of the charges IRC 1390, 1391 and 1392 of 2006; (2)By determining that the operation of the s28 defences of the Occupational Health and Safety Act 2000 did not differ in relation to the risk of a physical injury or a psychological injury; and (3)By misunderstanding the nature and scope of the defences relied upon.
Whether appellant was required to prove it was not reasonably practicable to implement all available measures 372As to this matter, we dealt with it earlier in addressing Ground E of the appeal. The contention is not made out.
Whether operation of s 28 defences differ in relation to the risk of a physical injury or a psychological injury 373At [773]-[802] Schmidt J considered how the statutory defence under s 28(a) operated, especially in the context of a charge relating to a psychological injury. In that respect, her Honour found: (a)section 28(a) itself draws no distinction between risks of physical, as opposed to psychological injury. A particular risk, may give rise to both types of injury, if the risk manifests (at [786]); (b)it was known to the appellant that its employees at Putland, including TAS Mary and TAS Su, were at risk of both physical and psychological injury, from exposure to the behaviour of the detainees with whom they worked in class (at [788]); (c)that risk was known to exist because the detainees repeatedly engaged in acts of violence, threats of violence and other threatening behaviour towards other detainees, as well as to DJJ and DET staff. It was also known to the appellant that repeated exposure to such incidents, increased the risk of psychological injury being sustained and that with such repeated exposure, even a relatively minor incident, could be the "straw which breaks the camel's back", resulting in a psychological injury being sustained (at [789]); (d)the risk of psychological injury which flowed from exposure to such behaviour was described in various of the appellant's documents, which had been designed to ensure that the risk, which could not entirely be eliminated at Putland, was controlled, as s 8 of the OHS Act required of the appellant (at [790]); (e)it was also known to the appellant that both TAS Mary and TAS Su had been exposed to such incidents, some of them more serious than others, over the course of their employment, prior to March 2004. It followed that it was reasonably foreseeable that they might suffer a psychological injury, if further exposed to such detainee behaviour (at [791]); (f)it was established on the evidence that the appellant had foreseen that those it employed at Putland were at risk of psychological injury, because they were repeatedly exposed at work to violence and the threat of violence from detainees (at [797]); (g)the appellant had sought to implement practices designed to protect its employees from such risks materialising. It had also designed paper policies to protect its employees from such risks, which it could not entirely exclude, given the access to Putland which it was obliged to give detainees (at [797]); (h)it was because repeated exposure to serious incidents happened at Putland that other available controls envisaged by the appellant under its various paper systems, were important, they being designed to control the risk which it could not entirely exclude. The evidence showed that these paper systems were not put into operation (at [798]); (i)it followed that it was reasonably foreseeable that TAS Mary and TAS Su would suffer a psychological injury, if exposed at work to violence and the threat of violence even though the appellant could not foresee the particular way in which detainees would misbehave in the period of the charges ([799]); (j)the submission by the appellant that the prosecution had to establish that a person of normal fortitude would suffer a psychological injury from exposure to the particular events which had caused TAS Mary and TAS Su to be injured had to be approached with some caution. The appellant conducted no psychological screening to identify whether any of its employees were particularly vulnerable to the risk of injury from their repeated exposure to violent and threatening behaviour from detainees. Its policies and systems were thus designed to protect all of its employees, including TAS Mary and TAS Su, from sustaining a psychological injury, no matter what their particular vulnerability to such injury was, given that none of its practical systems were able to ensure that they were not repeatedly exposed to such behaviour. Despite this, the paper systems designed to detect staff who were not coping, or were otherwise vulnerable to psychological injury and to protect them from such injury manifesting, were not in operation at Putland. It followed that any consideration of what persons of "normal fortitude" might be able to tolerate, must have regard to this state of affairs (at [800]-[802]). 374Her Honour then proceeded in the liability judgment to consider whether in respect of the three charges a defence had been made out under s 28(a). Her Honour concluded in each Matter the defences had not been made out. 375The appellant submitted: Her Honour found that caution had to be exercised in circumstances where the no measures had been implemented to detect if employees were vulnerable in the first instance by the appellant as an employer, who was aware of the risk of psychological injury to employees from repeated exposure to the behaviour of the detainees. Secondly, the appellant's policies and systems were designed to protect employees from such a risk, no matter what their vulnerability, as the appellant could not control or predict when the detainees may behave in a violent or threatening manner. The policies however, were held not to be operating at the relevant time. It followed that it was necessary to consider the common law concept of 'normal fortitude' within that context [reference being made to [801]-[802] of the liability judgment]. It is submitted that her Honour was in error in taking these considerations into account. Each of these considerations was irrelevant to the task of assessing the foreseeability of the risk of injury pleaded against the appellant. The absence of a prior assessment of employees is not a ground for caution in the context of the common law assessment. Especially, where the absence of a prior risk assessment had not been pleaded against the appellant. The fact that certain written policies of the appellant were not put into operation is likewise not relevant to a consideration of the fortitude of the relevant employees. 376We are not entirely sure what was meant by this submission. Nevertheless, in relation to Matters 1390 and 1391 (it being unnecessary to address Matter 1392 given that causation was not established) the evidence clearly established that the appellant knew that employees, presumably whom it regarded as persons of normal fortitude, who were repeatedly subjected to detainees engaging in violent and threatening behaviour might sustain a psychological injury when a particular incident, which of itself might not cause such an injury, became the "straw that broke the camel's back", given earlier exposure to the risk. The appellant could not entirely preclude that risk, given that it arose from the detainees attending Putland. Therefore, its systems were designed to control the risk, however it manifested. Those systems failed. 377Further, as Schmidt J correctly held, in the case of risk that may result in psychological injury, the obligation to ensure safety does not only arise when an employee puts an employer on notice that they are not coping. The question of foreseeability also does not depend on such notice being given. The employer's obligation is to do what is reasonably practicable for employees such as TAS Mary, by dealing with what is reasonably foreseeable as likely to give rise to a psychological injury, if not controlled. As her Honour found, that is what the appellant failed to do on 10 and 15 March. In other words, against the backdrop of the appellant's very detailed policies and procedures designed to protect employees from psychological injury and in the knowledge that employees at Putland were exposed to the risk of psychological injury because of the nature of their work, it must surely follow that it was reasonably foreseeable that unless reasonably practicable steps were taken to avoid it a person of normal fortitude might be placed at risk of psychological injury. 378In any event, as her Honour found, the appellant was on notice that TAS Mary and TAS Su were not coping at work. That is, it was not only reasonably foreseeable given the work environment that an employee might be at risk of psychological injury, but the appellant was specifically aware that two of its employees were showing signs of being at risk. 379The appellant also submitted under this appeal ground that Schmidt J erred in holding that the appellant had not addressed the issue of what was reasonably practicable by way of time, trouble and cost and the likelihood and severity of the risk. 380Schmidt J addressed this issue at [823] of the liability judgment in respect of Matter 1391 and at [835] in respect of Matter 1390: [823] It is strictly unnecessary to deal with this final aspect of the defence, given the other conclusions which I have reached, but for completeness, I observe that I am unable to conclude that the defendant demonstrated that the balance required by s 28(a) between the nature, likelihood and gravity of the risk here in question, outweighed the costs, difficulty or trouble of the measures necessary to avert the risk here in question. Perhaps because of the defendant's failure to ever investigate what had occurred on 10 March, the defendant did not really address questions such as these in its submissions. On the evidence, there was no explanation advanced for that failure of the defendant's systems and the failure to have relevant paper systems directed to preventing psychological injury, operating. Thus no basis upon which it could be concluded that the cost, difficulty or trouble of the measures necessary to avert the risk which manifested on 10 March, outweighed the nature, likelihood and gravity of that risk, was established in the defence case. ... [835] Nor did the defendant establish that the necessary balance of factors which would have averted the risk, outweighed the nature, likelihood or gravity of the risk. Given the failure to ensure that the paper systems designed to prevent psychological injury manifesting were in operation at Putland, there was no basis on which this could have been established. 381However, we note that the appellant did rely on evidence of the cost of having a DJJ officer located in each classroom as being approximately $55,000 per annum per officer. On that evidence the appellant contended it had made out that, on balance, the risk did not require a DJJ officer to be stationed in every classroom as asserted by the respondent and that the time, cost and trouble involved in doing so was not reasonably practicable. 382The appellant, of course, bore the onus of proving to the civil standard that it was not reasonably practicable to adopt measures to avert or minimise the risk. The risk in Matters 1391 and 1390 arose on 10 and 15 March respectively. The appellant did not make out a case that it was not reasonably practicable to have a DJJ officer in the classroom on those two dates. On the contrary, the system that applied at Putland allowed for daily risk assessments of detainees. Where the assessment indicated that a student, or proposed combination of students in any class, presented a particular hazard on a particular day it seems to us it would be reasonably practicable to have a DJJ officer in the classroom. 383Schmidt J dealt with this issue at [423]-[431] in relation to Matter 1391. At [431] her Honour stated: [431] On the evidence as to what occurred on 10 March, there can be no question that had a DJJ officer been present in class, TD's initial behaviour, when he threatened and assaulted teacher Ron, would have been observed by a DJJ officer with custodial responsibility for detainees. That behaviour could then have been dealt with immediately and his return, after he was removed by A/P Amanda, precluded. 384The evidence indicated that TD had been unsettled for a few days in class prior to 10 March. He had already been convicted of offences and had been charged with other offences involving violence; he also had a history of violence in custody; he was assessed by the appellant to be of high risk. At [418] Schmidt J observed: [418] Jayne M's evidence confirmed, however, that it was known that TD had been acting up for several days before 10 March. He had been excluded from school on 8 March, having attended court that day, a known generator of difficult behaviour, so that the system required all detainees to be excluded, on the day of such attendance. On 9 March, he did not obtain full points. Jayne M agreed that TD's criminal history for violence outside the detention centre, was running true inside, where he could be aggressive. And at [457]: [457] ... At Putland, detainee dissatisfaction when they did not gain maximum points and the privileges which accompanied them, was a known trigger for misbehaviour towards staff. The trigger for TD's misbehaviour that day was dissatisfaction with points earned the previous day. Removal from class meant that again, he could not earn maximum points that day, again heightening the risk which he posed, given his already existing dissatisfaction with the points earned the previous day. 385The appellant had the means for detecting a detainee who posed a risk in the classroom on any particular day; TD had exhibited behaviour prior to 10 March and in the early part of the first classroom session on 10 March indicating he posed a risk. The appellant did not show that the time, trouble and expense of installing a DJJ officer in the classroom on 10 March outweighed the nature, likelihood or gravity of the risk. 386A similar situation existed in relation to BH. He had a reputation for violence and required "very, very close supervision". Prior to the class on 15 March, teacher Ron expressed concern to AP Rebecca about BH's presence before class, but the class proceeded. The appellant did not show that the time, trouble and expense of installing a DJJ officer in the classroom on 15 March outweighed the nature, likelihood or gravity of the risk. 387Even if it were accepted that the appellant had addressed the issue of what was reasonably practicable by way of time, trouble and cost and, the likelihood and severity of the risk (the only example referred to by the appellant related to particular (b)(ii) of the cost of having a DJJ officer in the classroom and evidence led, but not accepted by Schmidt J, as to why the presence of a DJJ officer could create a greater risk to safety), Schmidt J held that there was no basis on which it could be established that the balance required by s 28(a) between the nature, likelihood and gravity of the risk in question, outweighed the costs, difficulty or trouble of the measures necessary to avert the risk in question. We see no error in this respect. As Schmidt J stated, given the failure to ensure systems designed to prevent psychological injury manifesting were in operation at Putland, the appellant could not succeed in an argument that given the time, trouble and cost it was not reasonably practicable to adopt measures to avert the risk.
Whether Schmidt J misunderstood the nature and scope of the defences relied upon 388We have addressed the issues raised under this sub-ground under other grounds, in particular, Ground B.
Whether the appellant relied on the statutory defence under s 28(b) 389There was an issue about whether the appellant had confined itself to relying only on s 28(a) as a statutory defence and eschewed s 28(b). Section 28(b) of the OHS Act provides: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: ... (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 390Schmidt J found that the appellant at first instance relied only on the defence under s 28(a) (see [10] of the liability judgment). 391Whilst the appellant indicated to her Honour that it relied on both limbs of s 28, its reliance was elliptical in the extreme. In its submissions on appeal the appellant offered only one example of its reliance on s 28(b): [T]he defence also relied upon a number of matters which were not within the appellant's control and for which it could make no provision. For example, the appellant relied on the statutory obligations it had under the Children (Detention Centres) Act 1987 to provide educational services and the requirement to operate in accordance with regulations that provided among other things as to how a detainee could be disciplined while in remand and the requirement for an incentive (points) scheme to operate for detainees. 392Schmidt J addressed the relevance of the Children (Detention Centres) Act 1987 at [139]-[150] and [155] of the liability judgment: [139] Cobham was conducted by the DJJ in accordance with the provisions of the Children (Detention Centres) Act 1987. That legislation regulated the way in which detainees were to be treated and how detainees' misbehaviour was to be dealt with. Detainees were regarded both as having the right to an education and were encouraged to pursue it at Putland. Under this legislation, detainees under 15 years of age, were obliged to participate in such education and the defendant was obliged to provide it. Even so, the Children (Detention Centres) Act permitted the use of the mechanism of detainee exclusion from class, in the event of misbehaviour, although the mechanism was the subject of specified controls. Thus removal from class and confinement for specified periods of time, were mechanisms in frequent use at Putland, to deal with detainee misbehaviour. [140] Detainees frequently engaged in and threatened violence and directed other threatening behaviour towards other detainees and DJJ and DET staff. On the evidence, education alleviated detainee boredom, a recognised safety risk for DJJ staff. In that context, the importance of the opportunity which Putland offered detainees incarcerated at Cobham, in ensuring that while in remand, they continued to have access to education, cannot be understated. That opportunity was not only one which was consistent with the statutory requirement, that even while being punished, detainees must be given 'some means of usefully occupying himself or herself' (s 21(2)(a) of the Children (Detention Centres) Act ), it was also one plainly in the public interest and in accordance with the obligations imposed upon the defendant by the OHS Act, to ensure its employees' safety. [141] Access to continuing education thus provided the detainees with activities which had the potential benefit of reducing the stress, anxiety and boredom created by the incarceration of a group of young men, many of whom came from disadvantaged backgrounds, while they were detained on remand. Had the opportunity to attend Putland not been available to the detainees, the risks which people who worked with the detainees at Cobham were exposed to, may well have been even more serious than the undoubted risks which the detainees created for those workers. [142] The benefit which access to education provided to the detainees themselves, should thus not be understated. Education potentially provided them with a means to choose a different path in life, to that which they had chosen to that point, which had brought them to Cobham. That the employees of the DET working at Putland were aware of, and supported such concerns, was also very apparent from the evidence of various of the witnesses and in the policy documents in evidence. [143] That attitude was very much to their credit and that of the defendant, given the challenge which working with the detainees incarcerated at Cobham presented. Cobham and Putland staff, undoubtedly, undertake difficult and socially important work. [144] It is in this context that the obligations which the OHS Act imposed upon the defendant, arose for consideration. That legislation imposed an absolute obligation to ensure the safety of those employed to work at Putland. The defendant was plainly aware of its obligations and sought to address them in various ways, through the policies and practices which the DET and DJJ implemented at Putland - both paper systems and those operating in practice. The DET and the DJJ, also had other obligations which they had to meet, such as those which fell upon them under the Children (Detention Centres) Act , in relation to the welfare and safety of the detainees. [145] It was the defendant's case that it had to balance these two statutory obligations, in a way which meant that the obligations imposed by the OHS Act, had to give way to those imposed by the Children (Detention Centres) Act. I am unable to accept that submission. [146] I am satisfied, for similar reasons to those which I discussed in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245, that in meeting the statutory obligations which it had in respect of detainees at Putland, the defendant could not sacrifice the safety of its staff, which the OHS Act required that it ensure. [147] In this case, the defendant did not seek to challenge the correctness of the conclusions reached by the President, Justice Boland, in Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [291], that the offences created by s 8 of the OHS Act, were absolute liability offences. In coming to that conclusion, his Honour followed well settled law discussed, for example, in Newcastle Wallsend Coal Company Pty Limited v McMartin (2006) 159 IR 121 at [214] - [215], in the context of the predecessor to the Act, the Occupational Health and Safety Act 1983. As the defendant accepted, there is no reason to doubt the correctness of Boland J's conclusions, in the context of the current Act. It has been confirmed by the Court of Appeal decision in Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465 at [304]. [148] Given the nature of the obligations imposed by the OHS Act, I adhere to the views which I reached in Central Sydney Area Health Service. There I observed at [90]: No matter how dedicated to patient welfare a nurse or other employee might be, it is inconsistent with the requirements of the Act, that the defendant permit them to be the subject of physical assault, or indeed repeated physical assault, by patients who are not restrained from harming others. Employment on such a basis is not permitted by the Act. [149] That approach has been followed in a number of other cases. (See, for example, WorkCover Authority (NSW) (Inspector Stewart) v Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 (at 227).) [150] I am also satisfied that the observations I made in Central Sydney Area Health Service apply equally, in the context of the statutory regime applying to the treatment of detainees at Putland. In ensuring that the obligations imposed upon it by the Children (Detention Centres) Act were met by the defendant, it could not ignore its obligation to ensure the safety of its staff. The OHS Act does not permit employment on such a basis. ... [155] In this case, that the defendant also did not approach its obligations at Putland, on the basis that the statutory obligation to provide detainees with access to education, overrode its obligation to ensure its employees' safety, was, in any event, apparent, given the policies and procedures in evidence. They recognised the risk of injury at work, potentially flowing from employees' exposure to detainees' violent and threatening behaviour and established mechanisms designed to ensure that those risks did not manifest. Those mechanisms included excluding detainees from class completely, if their behaviour put employees' safety at risk. That mechanism was one provided for by the Children (Detention Centres) Act and was implemented at Putland, if judged necessary . None of the defendant's policies or systems required that detainees would be provided with access to classes at Putland, even if staff safety could not be ensured. 393We agree with her Honour. There was clearly no focus by the appellant on the second limb of s 28 and Schmidt J may be forgiven for thinking the appellant relied only upon s 28(a). To the limited degree the appellant did rely on s 28(b), it did not discharge the onus of proving the elements of that provision . 394Ground G and Ground C(iii) are not made out in respect of Matters 1390 and 1391.
GROUND H 395It was contended Schmidt J erred in respect of the three charges in that her Honour: (i) Relied upon factual matters that were not the subject of the charges and which were not pleaded; (ii) Relied upon factual matters for which there was insufficient evidence; (iii) Erred in determining that the acceptance of liability for the injuries sustained by TAS Mary and Su for the purposes of the Workers Compensation Act 1987 (NSW) amounted to an admission for the purposes of the prosecutions of the Defendant, and that it should be taken as evidence that the Defendant was responsible for the risk of injury to and injuries claimed to be sustained by TAS Mary and Su, the subject of the charges; (iv) Made inconsistent findings of fact against the defendant; and (v) Failed to give adequate weight to all of the relevant evidence when dealing with the acts and omissions pleaded in the charges.
Ground H(i) - Relied upon factual matters that were not the subject of the charges and which were not pleaded
Ground H(ii) - Relied upon factual matters for which there was insufficient evidence 396It was submitted for the appellant that her Honour made key factual findings that were relied on for determining causation, liability and the s 28 defences. It was contended that there were a number of factual findings that either were not the subject of the charges, were not supported by the weight of the evidence or were of an inconsistent nature such as to not allow the proper determination of liability and penalty or to make the findings made reliable. We address each of these below in respect of Matters 1390 and 1391, it being unnecessary to do so in respect of Matter 1392 given that we earlier found that Schmidt J had erred in determining the charge had been made out.
Repeated exposure to detainee behaviour 397The only matter raised under this heading that was not specifically addressed elsewhere in this judgment was the proposition that the violent behaviour of a detainee outside the centre did not necessarily equate with the behaviour once a detainee was inside the centre. The appellant noted that it had argued below that the relevant behaviour to consider in relation to the charges was the behaviour of the detainees TD and BH inside the centre. In addition, the behaviour of detainees varied from when they were in the units or in school. The school provided activities and programs. That service was seen as a positive mechanism to relieve boredom and other negative effects on behaviour and consequently, the safety of staff supervising the detainees. 398In responding to this proposition, the respondent drew attention to the evidence of Mr Peter Muir, a witness for the appellant: Q. Just on that point, can you tell the court what is the distinction between static and dynamic information? A. Static information would be the offences the young person has come in on, when they're due to court, you know, hard facts that really don't change. Dynamic are the things that change on a day-to-day basis when a detainee has had a fight with someone, a bad phone call, that sort of information. So those things are shared at the morning briefing. We also have what we call our centre support team, CST. The CST's role is to bring together the two departments, also with Justice Health, to look at the progress of that particular young person to define a case plan to input to the Department of Education's training plan that they would have with that detainee and to make decisions such as risk assessment decisions and latterly, not at this time in 2004, classification decisions. Q. In order to predict or risk assess the detainee's behaviour, in your experience is the static information or the dynamic information more pertinent? A. Both is the answer. One without the other can lead to an unreliable outcome. 399In any event, our reading of the evidence suggests that TD and BH exhibited behaviour inside the centre that should have alerted the appellant to the prospect they constituted a risk to the safety of TAS Mary and TAS Su at the relevant times.
Prior incidents involving TAS Mary and TAS Su 400It was contended that there was no evidence available of TAS Mary and TAS Su being personally subject to detainee behaviour that was violent, threatening or anti-social prior to 10 March 2004 such as to permit her Honour to make the findings she did that they were repeatedly and constantly exposed to such behaviour. 401Her Honour referred on a number of occasions in her liability judgment to TAS Mary and TAS Su being exposed to violent behaviour. At [760]-[762] her Honour stated: [760] For reasons which I have explained, there can be no doubt that TAS Mary and TAS Su each suffered a psychological injury, as the result of their experiences at work at the relevant time. Their claims were investigated and liability for their injuries was accepted by the defendant, for workers compensation purposes, indeed, it never disputed its liability, given what Ms Koussa's investigation revealed. Even though Ms Koussa concluded that TAS Su's response to the 17 March incident was disproportionate to the incident, in her view TAS Su might have been sensitised to potential distress on account of prior incidents and through her personal concerns with safety. The defendant's submission that there had not been such other prior incidents, cannot be accepted, on the evidence. [761] TAS Mary had been involved in a number of incidents in the two and a half years that A/P Rebecca had worked at the school. A/P Rebecca told Ms Koussa that these included a student assault in a class TAS Mary was working in, in 2003; one where she had sought help from the Principal with a detainee who had thrown chairs at a window in class, but the Principal told her that she was too busy to assist; and the incident where she had called for assistance on 10 March, when accosted by TD, when none came. A/P Rebecca reported that the escape that day had not been acknowledged as serious by the Principal, who stated 'heaven help us when something serious happens'. As to the 10 and 15 March incidents in which TAS Mary had been involved, it was A/P Rebecca's view that they were 'extreme'. [762] Like TAS Mary, TAS Su had also been involved in other incidents before 17 March, in addition to observing what occurred with BH in the quad on 15 March. She had been involved in what occurred on 10 March with TD when the defendant's safety system failed to ensure that assistance was given to TAS Mary and teacher Ron. In 2003, there had been a serious assault of one detainee by another, in a class in which TAS Su was teaching, and earlier in March there had been a bomb scare. 402Other references to exposure to violence in the liability judgment included the following:
Paper policies and systems implemented 404The effect of the submission under this heading seems to be that her Honour erred in finding that the appellant should have observed the policies and systems applicable to safety at Putland or at least took too strict a view about the application of those policies. 405Having regard to the matters raised under this heading we are satisfied we have addressed them under the appeal grounds dealt with earlier in this judgment, in particular, in Ground B.
The charges 406The appellant listed some 19 matters (supplemented by a table identifying the finding, the reference in the liability judgment and the reliance placed on the finding) that it contended were taken into account in the determination of liability, but were not the subject of the charge and which were not pleaded. 407To simply provide a table of such matters is entirely unhelpful in determining whether the charges were thereby rendered invalid or defective. It seems to us that a number of the matters fall mainly into the category of further particulars or are merely evidentiary matters not required to be pleaded. Other matters, such as: " That TAS Mary and TAS Su were repeatedly exposed to violent and threatened violent behaviour from detainees", were matters of which the appellant was advised either in the prosecution brief or the respondent's opening submissions at first instance and in respect of which there was no complaint at first instance by the appellant that it did not understand the case it was required to meet. 408In the absence of proper development of this list of matters by the appellant in its submissions, we do not propose to deal with it further.
Ground H(v) - failed to give adequate weight to all of the relevant evidence when dealing with the acts and omissions pleaded in the charges 409The appellant submitted Schmidt J erred by determining the offences particularised in each charge were proven by failing to give adequate weight to all of the relevant evidence when dealing with the acts and omissions pleaded in the charges. The appellant listed some 33 such matters and supplemented this list with a table setting out the relevant finding of fact by her Honour, the evidence that was said to be relevant to that finding of fact and propositions about what finding of fact should have been made in light of the evidence referred to in the table. 410Once again, this approach by the appellant is quite unhelpful. This is an appeal involving a complex matrix of facts relating to three charges with multiple particulars. There was no attempt by the appellant to relate the alleged error regarding the findings of fact to a particular of a charge in order that we might determine whether her Honour erred regarding her findings in relation to that particular. In other words, error is alleged but no submission is made concerning the implications of that error in respect of her Honour's findings regarding the charges and the particulars of the charges. The appellant's approach says in effect to this appellate court, "Here are what we say are the errors in her Honour's fact finding, you work out which charge and which particular of the charge they relate to and what the implications are for the findings at first instance". That responsibility rests with the appellant. 411In any event, a perusal of the 33 matters raised by the appellant suggests that in relation to the more significant of them they have already been addressed in the context of our consideration of the individual particulars of each of the charges.
Ground H(iii) - that the liability for the worker's compensation claims of TAS Mary and TAS Su had been accepted 412In relation to the acceptance of liability for the workers' compensation claims by TAS Mary and TAS Su, Schmidt J made the following findings at [279], [280], [283], [614] and [760]: [279] There was a deal of evidence from doctors, psychologists and psychiatrists as to the nature of the psychological illnesses which TAS Mary and TAS Su had each suffered, about which there were differences of opinion. Their workers compensation claims had been investigated by Ms Koussa, with the result that liability was accepted. She interviewed them, the Principal, their supervisors and treating practitioners. Like their doctors, Ms Koussa came to the view that they had each suffered psychological injury, as the result of what they had been exposed to at work. She concluded that they both had adjustment disorder with mixed anxiety and depressed mood. [280] While the defendant had never suggested that TAS Mary and TAS Su had not been injured at work and had not denied liability for their injuries, in these proceedings, evidence was called in relation to such matters; as well as whether their injuries were foreseeable and whether a person of normal fortitude would have been so injured. ... [283] That evidence, when considered together with the evidence of what, in fact, occurred to TAS Mary and TAS Su at this workplace, the views formed by treating doctors and other practitioners, that they had been injured and the evidence of the defendant's experts, finally given in cross examination, left no room for doubt that both TAS Mary and TAS Su suffered a psychological injury at work. ... [614] On the evidence, this particular [particular (c) of Matter 1390] was also established. The defendant accepted liability for TAS Mary and TAS Su's workers compensation claims, which were investigated by Ms Koussa. ... [760] For reasons which I have explained [in relation to particular (c) of Matter 1392], there can be no doubt that TAS Mary and TAS Su each suffered a psychological injury, as the result of their experiences at work at the relevant time. Their claims were investigated and liability for their injuries was accepted by the defendant, for workers compensation purposes, indeed, it never disputed its liability, given what Ms Koussa's investigation revealed. Even though Ms Koussa concluded that TAS Su's response to the 17 March incident was disproportionate to the incident, in her view TAS Su might have been sensitised to potential distress on account of prior incidents and through her personal concerns with safety. The defendant's submission that there had not been such other prior incidents, cannot be accepted, on the evidence. 413The appellant submitted the evidence before her Honour demonstrated that the liability for workers' compensation was not accepted by the appellant. Nor did the evidence support the view that the insurer had accepted liability at any time, on behalf of the appellant. Further, that the appellant's acknowledgement that both TAS were injured at work did not equate with an admission of liability for the purpose of the prosecution proceedings in a criminal jurisdiction. Nor, it was submitted, did the acknowledgement mean that the appellant accepted the acts and omissions pleaded in the charges were causative of the injuries as alleged. The appellant put forward the alternative hypothesis that the injuries sustained were due to other causative factors such as vocational dissatisfaction, and not the alleged acts and omissions, for example, to provide adequate management support from the Principal in the period 10 to 17 March 2004. 414Although the appellant may never have expressly accepted liability for workers' compensation in respect of TAS Mary and TAS Su, the evidence was overwhelmingly in favour of the conclusion that both TAS had suffered an injury arising out of and in the course of their employment, the injuries were psychological, workers' compensation payments were made in respect of the injuries and the appellant's liability for workers' compensation was never disputed.
Ground H(iv) - inconsistent findings 415The appellant submitted that within her Honour's judgment a number of factual findings were made as to TAS Mary and TAS Su that were so inconsistent that the findings made could not stand. 416An example given was the findings made in relation to TAS Mary and TAS Su and the issue of whether or not they were vulnerable to a psychological injury prior to 10 March 2004. At various parts of the judgment it was submitted her Honour made the finding that neither TAS presented with any prior vulnerability until 10 March and both, were persons of "normal fortitude" and resilience. Equally, at other parts of the judgment, it was held that both TAS had a prior vulnerability to psychological injury arising from their previous exposure to the violent behaviour of the detainees, that there were clear indications that they were not coping at work, that the Principal was aware of this and took no action; and if the appellant's paper systems had been working as they should this vulnerability ought to have been detected and addressed proactively to prevent injury. 417In the context of Matters 1390 and 1391, we have examined the references by the appellant to the liability judgment that the appellant contended supported its contentions regarding inconsistency. We are unable to accept the alleged inconsistency exists. The effect of her Honour's findings was that TAS Mary and TAS Su could be regarded as persons of normal fortitude, that is, they did not have a pre-disposition to psychological injury. However, exposure to acts of violence by detainees prior to 10 March had increased their vulnerability to psychological injury and they began to show signs of not coping. In circumstances where their capacity to cope had been lowered, the events of 10 March and 15 March caused the two individuals psychological injury. 418Ground H was not made out in respect of Matters 1390 and 1391.
GROUND I 419The appellant submitted her Honour misconstrued the principles to be taken into account in the determination of penalty in each of the charges and as a result the penalty imposed was manifestly excessive in that: (i) the nature of the injuries sustained by TAS Mary and TAS Su was treated as an aggravating factor in the determination of penalty; (ii) insufficient weight was given to mitigating factors; (iii) matters that were not pleaded or were not relevant to the charges were taken into account; (iv) in applying the totality principle inadequate weight was given to the overlapping nature of the charges and evidentiary matters relied on to find the offences proven; (v) the defendant was in effect penalised with respect to the cumulative exposure of TAS Mary and TAS Su to the risk and not just with respect to the incidents pleaded; (vi) inadequate account was taken of difficulties of the defendant being able to reasonably foresee the injuries to TAS Mary and to TAS Su in the circumstances; (vii) her Honour erred in finding that the injuries to TAS Su and Mary were a manifestation of the risk. 420We should make it clear from the outset of our consideration regarding this ground of appeal, which goes to the question of penalty, that we are only concerned with Matters 1390 and 1391, as the charge in Matter 1392 was not made out. The maximum penalty applicable in respect of the contraventions in Matters 1390 and 1391 was $825,000 (see sentencing judgment at [5]). In respect of Matter 1390 the appellant was convicted and fined an amount of $160,000. In respect of Matter 1391 the appellant was convicted and fined $200,000. These amounts were arrived at having regard to the usual sentencing principles and the principle of totality.
Ground I(i) - the nature of the injuries were an aggravating factor
Ground I(v) - the defendant was in effect penalised with respect to the cumulative exposure of TAS Mary and TAS Su to the risk and not just with respect to the incidents pleaded
Ground I(vi) - inadequate account was taken of difficulties of the defendant being able to reasonably foresee the injuries to TAS Mary and to TAS Su in the circumstances
Ground I(vii) - her Honour erred in finding that the injuries to TAS Su and Mary were a manifestation of the risk 421The appellant submitted that in addition to the aggravating factors arising pursuant to s 21A(2)(a) and (b) (the victim was a public official and the offence involved actual or threatened violence) of the Crimes (Sentencing Procedure) Act 1999 , her Honour found that the nature of the injuries sustained by TAS Mary and TAS Su required that they must be treated as an aggravating factor in the offence and hence the determination of penalty. (see [55] of the sentencing judgment). That finding, it was submitted, raised grounds I(i), (v) (vi) and (vii) of the appeal. 422Much of the appellant's submissions under these sub-grounds concerned Matter 1392. As we have found, the offence in that Matter was not made out and hence there can be no conviction and penalty in respect of it. It is, therefore, unnecessary to consider the appellant's submissions in that regard. 423As for the remainder of the submissions, they do not identify any material error in the sentencing judge's approach or reasoning in relation to Matters 1390 and 1391. Her Honour relied on her findings in the liability judgment regarding foreseeability, the relevance of the appellant's paper systems and other relevant matters in arriving at her conclusions regarding sentence. There was no error in those respects in the liability judgment and they were correctly applied in relation to sentencing. 424As for the submission that it was impermissible of her Honour to conclude that the injuries sustained by TAS Mary and TAS Su " were serious and ongoing" and that as such the injuries were to be treated as an aggravating factor in sentencing, we think that submission is wrong. Irrespective of the precise nature of their injuries her Honour concluded: [55] The evidence showed that TAS Mary later recovered sufficiently to return to work for the DET elsewhere, on a part time basis. It is most regrettable that TAS Su has never recovered sufficiently to return to work. Uncontested evidence was called from her at the sentencing hearing as to the ongoing and serious consequences of the risk to which she was exposed at Putland. The nature of the injuries sustained by TAS Mary and TAS Su require that they must be treated as an aggravating factor in this case.
Ground I(ii) - insufficient weight given to mitigating factors 425In relation to sentence, it will be recalled that Schmidt J determined as follows: [104] It seems to me, having in mind what was dealt with in the December judgment and having weighed all of the matters to which I have referred, that the appropriate penalties for the three offences is $250,000, for the 10 March offence, $200,000 for the 15 March offence and $220,000 for the 10-17 March offence. [105] A total penalty of $670,000 for the three offences must be considered against a penalty backdrop of $825,000 for each offence, a total of $2,475,000 for three offences which have many features in common. On any proper and fair consideration of the defendant's criminality in these cases, that would impose a penalty in excess of its culpability, given, as I have sought to explain, the substantial, albeit not complete, overlap between the offences. [106] Accordingly, in determining an appropriate penalty in each case, by applying the principle of totality, I have concluded that an overall penalty for the three offences of $540,000 is just in all of the circumstances. That should result in a final penalty of $200,000, for the 10 March offence, $160,000 for the 15 March offence and $180,000 for the 10 - 17 March offence. 426The appellant submitted that her Honour erred in sentencing by not giving sufficient or any weight to a number of mitigating factors. The errors were said to be as follows: (a)it was not accepted by her Honour as an aberration that the appellant failed to comply with the paper systems it had devised to deal with psychological risk and that if such systems were in place the Principal could not have avoided the concerns raised by TAS Mary and other staff. Her Honour erred in this regard by taking into account the safety concerns raised by other staff as that matter was not pleaded or the subject of the charges, and ought to have limited her consideration to what related to TAS Mary and TAS Su in relation to the matters pleaded. Further, the evidence did not support the finding that AP Amanda and teacher Ron had also raised concerns about safety generally at the school in the period 10 to 17 March 2004; (b)the predictability or, otherwise, of the risk posed by detainee students on any one day was referred to by her Honour in relation to error in the decisions made about the suitability of BH to attend class on 15 March. Her Honour observed that "[n]ot all human error can be predicted and controlled." However, the practical difficulties associated with implementing and operating systems that could predict individual behaviour on any one day with accuracy was not taken into account sufficiently by her Honour in determining the nature and quality of the offence and the matters raised in mitigation. Her Honour failed to place adequate weight in mitigation on the practical difficulties involved in operating systems that require individuals to be assessed on a variety of issues including whether their predicted behaviour on any one day made them suitable to attend school or not; (c)the option of excluding students like TD and BH from all school activity also needed to be balanced with the other statutory obligations imposed on the appellant under the Children (Detention Centres) Act 1987, the type of behaviour the detainee had previously presented with at school, and other factors known to impact on an individual such as court appearance dates, or a break-up with a girlfriend. Those matters were not considered by her Honour; (d)inadequate weight was given to the various social support systems in place at the time of the offences; (e)inadequate weight was given to the practicability and difficulty in implementing systems that could detect vulnerable staff and/or staff that had a latent psychological injury, such as accumulated stress. 427As to all of these matters, the appellant contended that the primary judge either gave no weight or insufficient weight to matters relied upon by the appellant in mitigation and that, therefore, the penalties imposed were manifestly excessive. 428As to the first matter, it is apparent there were concerns amongst the staff about safety at Putland: see [134]-[138] of the liability judgment. The appellant's objection, however, is that these concerns were not pleaded and were not the subject of the charges. However, staff concerns about safety were referred to in the respondent's opening submissions at first instance. Further, no objection was taken at any stage by the appellant to the evidence regarding staff safety concerns. 429As to the second matter, it seems to us there was no "practical difficulty" in understanding BH constituted a threat to the safety of staff on 15 March. He had a reputation for violence and required "very, very close supervision". Prior to the class on 15 March, teacher Ron expressed concern to AP Rebecca about BH's presence before class, but the class proceeded. In any event, it is difficult to see how the appellant can succeed in its contention that Schmidt J failed to place adequate weight in mitigation on the practical difficulties involved in applying its systems regarding staff safety, when it never implemented those systems and when the arrangements it did have in place were ineffective. 430As to the third matter concerning the appellant's statutory obligations under the Children (Detention Centres) Act and factors affecting the behaviour of detainees , Schmidt J was obviously aware of the balance required between providing education to detainees and staff safety: see [53] of the sentencing judgment. As to the other minor factors referred to by the appellant, that her Honour did not mention these in the sentencing judgment, is no basis upon which to conclude the sentences were manifestly excessive. 431As to the fourth matter, the appellant submitted: These systems included a school counsellor, AP support, a staff welfare officer, and the EAPS counselling services (external). After the incident involving BH, TAS Mary was referred to the EAPS counselling service by AP Sue. Another important mitigating factor was that there was evidence of social support being provided on other occasions by the principal. For example, the principal provided support to TAS Mary in 2000 after her operation and assisted her in her return to work. 432The appellant's complaint regarding lack of social support related to the charge in Matter 1392. Accordingly, it is unnecessary for us to deal with it. 433As to the fifth matter, there was evidence that the appellant was aware that both TAS Mary and TAS Su had been rendered vulnerable to psychological injury by their experiences.
Principal's attitude to safety 434The appellant submitted the facts "did not warrant a broad brush approach to brand the principal's approach to safety as one of leaving it to the DJJ." This was a reference to her Honour's finding at [38] of the sentencing judgment: [38] The evidence showed that one of the real problems at Putland was the Principal's attitude to the safety of DET staff. (See December judgment at [699] to [703] for example.) The paper systems did not envisage that their safety was a matter for the DET, or the Principal, to simply leave in the hands of the DJJ. That, however, was the Principal's attitude, which led her to forbid staff from discussing the system failures which occurred on 10 March and to refuse to discuss the concerns which staff repeatedly sought to raise with her afterwards, so that the system failures could be addressed. The result of this approach was that what occurred with TD on 10 March was never investigated by the DET, or the DJJ. 435In the liability judgment Schmidt J dealt with the Principal's attitude to safety at [699]-[703]: [699] The Principal's general approach was that safety matters were not matters for the DET, but for the DJJ. On her own evidence, she refused to discuss such matters with staff, when they raised them direct with her. She even refused to discuss the failure of the duress alarm system on 10 March, which TAS Mary and teacher Ron both sought to raise direct with her, that day and subsequently in staff meetings at which TAS Su was present. The general rule was that safety concerns had to be put in writing, to be provided to a supervising A/P to deal with. On the evidence of A/Ps such as A/P Rebecca, the Principal still then refused to deal with them. [700] There was also evidence of a view that the Principal bullied and belittled staff, who persisted in their efforts to raise safety issues, at daily DAP meetings, or at weekly staff meetings. The Principal disagreed, as did A/P Amanda and A/P Jon. Given the evidence of staff concerns as to safety matters; the Principal's own evidence as to her attitude to them; the evidence of staff persistence in pursuing such matters; the evidence of various staff, including teacher Ron, TAS Mary, TAS Su and A/P Rebecca, that the Principal's treatment of staff who sought to pursue such concerns, was not appropriate, must be accepted. There is certainly no reason why the evidence of TAS Mary, TAS Su or teacher Ron, about the Principal's approach to them, should be disbelieved, confirmed as it was by the evidence of A/P Rebecca. [701] TAS Mary sought to raise the duress alarm failure direct with the Principal on 10 March, as did teacher Ron that day. Safety concerns were also the subject of a general staff discussion on 10 March during a meeting, ongoing when the Principal returned from the pursuit of the escapees that day. On her own evidence, the Principal required the discussion to cease. Even when safety was raised again on Friday at the staff meeting, after the school had been closed in the aftermath of the escape, in the context of a suggested DET consideration of what had happened during the lead up to the escape, including TD's behaviour, the Principal insisted that these matters were not to be discussed. Despite the evidence of the heightened tensions amongst detainees, in the aftermath of the escape, confirmed by the records kept in the Log Books in evidence, the failure of the duress alarm system was never investigated by the DET, or the DJJ. [702] The Principal's evidence was that she had taken the course of refusing to allow staff to discuss the circumstances of 10 March, that day and subsequently, to save the face of certain DET staff, who, on information then known to her, appeared to have left open a door, at recess, which permitted the escapees to gain access to the second quad, from which they escaped through a classroom. This provided no sensible explanation of the attitude adopted. Plainly, it was contrary to applicable DET policy. There was no explanation for the failure to apply those policies at Putland. Copies were provided to staff, as being binding on them. They ought to have been applied by the DET. [703] On the expert evidence, such an approach was inconsistent with proper management support of staff with serious safety concerns, adequate to ensure that they were not susceptible to psychological injury, when required to deal with detainees engaging in physical violence or threatening it, in their classrooms. 436Our view is that there was sufficient evidence for Schmidt J to conclude that the Principal's attitude to safety contributed to the risk. There is not a sufficient basis in what was put by the appellant to conclude that her Honour erred to such an extent regarding the Principal's attitude that it caused her Honour to arrive at a penalty that was manifestly excessive.
Ground I(iii) - matters that were not pleaded or were not relevant to the charges were taken into account 437It was submitted her Honour took into account in the determination of penalty matters that were not pleaded and/or were the subject of the charges. The following examples were relied upon:
Injuries to other staff 438It was submitted her Honour did not accept that the incidents on 10, 15 and 17 March were "an aberration" of an otherwise good system. This was on the basis that while there had been no other prosecution proceedings in relation to the centre or the school, other staff from the school in the past had been injured both physically and psychologically. The appellant submitted this was a matter her Honour ought not to have had regard to for essentially two reasons: (a) the evidence of injuries to other staff that gave rise to worker's compensation claims was not pleaded and did not form the subject of the charges; and (b) t he evidence of other staff being put at risk was not of a kind or, of sufficient weight for this to be taken into account on the basis that it indicated a long running or standing contravention of the OHS Act at the school. The evidence of Mr Armstrong did not support her Honour's findings in this respect. 439We dealt earlier with the first reason, finding in effect that no prejudice had been caused to the appellant because the respondent raised the issue in opening submissions and no objection was taken by the appellant going to the issue of staff concern for their safety. 440As to the second reason, the relevant passage in her Honour's sentencing judgment dealing with injuries to other staff and her finding that what had occurred on 10 and 17 March was not an aberration (at [30]): [30] As the December judgment discussed, providing access to education and training to juveniles detained in juvenile justice detention centres, is an important, but difficult undertaking. Ensuring the safety of the staff employed to achieve the defendant's aims is also difficult, given the ever present risk of violence which detainees pose to each other and to staff. That was why, in addition to the practical systems in operation at Putland, the defendant had also devised numerous written policies, designed to ensure staff safety. Regrettably, certain of these policies, including policies specifically designed to protect staff from the risk of psychological injury materialising, were not in operation at Putland and the practical safety systems which were in place, also failed in certain respects, at the time of these offences. Having this in mind, it is difficult to accept the defendant's submission that it would be concluded that these offences were an aberration. While there had not been prior prosecutions in relation to such incidents, on the evidence before March 2004, other staff had been injured by detainees at Putland. Both physical and psychological injuries had resulted. 441It does seem to be correct that in finding there had been psychological injuries to other staff, that Schmidt J relied mainly on the evidence of Mr Armstrong, a staff welfare officer: Q. Certainly. Did you ever establish if anybody went off on such leave in those categories of employees? A. Yes I recall workers' compensation claims for staff at Putland. Q. So were you aware before 10 March 2004 there had already been some staff at Putland ETU had gone off on stress related claims for psychological injuries? A. Yes. Q. So as you understand it, the district office was on notice that psychological injuries were an issue that existed at Putland ETU before 10 March 2004? A. In terms of psychological injuries yes we were aware they were happening. 442There did not appear to be any evidence to the contrary. Schmidt J was entitled to have regard to that evidence.
Staff safety concerns 443The appellant submitted her Honour failed to take into account other avenues the appellant had in place for staff to use if dissatisfied with the response they received from the Principal regarding safety concerns. Even if this be correct, it does not carry such weight as to cause us to conclude the penalty was manifestly excessive. Moreover, we note the evidence that AP Rebecca had taken up the issue of staff safety concerns with the Principal, but she had been unsuccessful.
That staff were at risk each and every day from the systems in place 444At [36]-[37] of the sentencing judgment Schmidt J referred to the need for the appellant to have implemented all of its paper systems designed to address the risk of employees such as TAS Mary and TAS Su working with detainees and that the failure to do so put the seriousness of the offences beyond doubt. At the same time, it was submitted, her Honour found the appellant's practical systems only addressed risks when they materialised and were incapable of identifying which detainees may put staff at risk of injury on any one day. That finding, it was submitted, went beyond the charges and in effect inferred that what occurred on 10 and 15 March in relation to TD and BH occurred on every day the school operated. That was not only not pleaded or the subject of the charges, it also unjustly increased the seriousness of the offence, according to the appellant. 445On the other hand, at [30] of the sentencing judgment, her Honour referred to the practical systems failing "at the time of these offences". Further, at [31] her Honour said it had to be "born [sic] in mind that this was not, on any view, a defendant which simply ignored the obligations which the Act imposed upon it." We are not satisfied that in determining penalty Schmidt J did so on any basis other than what were the subject of the charges in Matters 1390 and 1391. 446At [39] of the sentencing judgment, Schmidt J stated: [39] The fact that this occurred at a time when there was a building programme underway, which meant that Putland was not operating normally, to my mind, does not explain or excuse what happened. It seems to me that this ought to have enhanced the attention being paid by the defendant to ensuring safety and should have made those in authority at Putland, more, not less, receptive to known staff concerns that their safety was being put at risk, by measures introduced to cope with the consequences of the building programme. In the circumstances, it seems to me, particularly having in mind the evidence given by the experts called by both parties, the defendant ought to have been aware that the risk of psychological injury materialising by Putland employees, was heightened. That such injuries were sustained by TAS Mary and TAS Su, cannot in the circumstances, be treated as an aberration. As has oft been discussed in the authorities, the Act requires employers to be proactive in dealing with risk prevention, not just reactive, after it has materialised. 447The appellant submitted that the building program was not particularised or otherwise the subject of the charges and ought not have been taken into account in the manner it was. The building program was referred to in the respondent's opening submission, it having been submitted the program impacted upon detainee behaviour in an adverse way. The appellant took no objection to these submissions nor to the evidence regarding the building program.
Remorse 448The appellant referred to the fact that Schmidt J made specific reference in the sentencing judgment in the consideration of the mitigating factors in assessing remorse, to the fact that the appellant defended the charges and that as a result the expression of remorse at the sentencing hearing had to be considered closely. The appellant submitted: The decision to defend the charges was held to arise in part on the fact that certain of the evidence given at trial was not known to the appellant. Specific reference was made to paragraphs [129], [130] and [595] of the liability judgment. When one goes to those paragraphs, it goes to the different approaches taken by the DJJ and the DET to the management of detainee behaviour and how the events on 15 March were viewed. That finding by her Honour fails to place adequate weight on the evidence that clearly established that: (i) the behaviour of detainees in the units and over the weekend was different to their behaviour in a structured environment like a school program, where class sizes were limited to six detainees and there were activities to participate in under instruction. In the units there were a larger number of detainees mingling together and not all of the detainees who were in the units were deemed suitable to attend school; (ii) the events on 15 March need to be regarded in two stages. The first stage was BH's behaviour at the end of the lesson and the second stage was when he challenged DJJ staff to fight and had to be handcuffed. The last stage of BH's behaviour is what Jayne M referred to as the 'upper end' for Putland. No DET staff were in the quadrangle or otherwise thought to be at risk of physical injury in the same way as applied to the DJJ staff restraining BH. The views of TAS Pam who was in the room at the time BH acted out gave evidence that she did not feel at risk during the first stage of BH's behaviour as reflected the report prepared into the incident. It did not, as her Honour found, reflect two different approaches to safety of staff, but rather different circumstances. 449Schmidt J found that the appellant had been "truly remorseful": at [81] of the sentencing judgment. We, therefore, do not see the point of this submission. No error arises in our view.
Ground I(iv) - in applying the totality principle inadequate weight was given to the overlapping nature of the charges and the evidentiary matters relied on to find the offence proven 450It was submitted for the appellant that the injuries manifested in both TAS were all attributed to the one causative factor i.e., cumulative stress, supported the contention that greater weight ought to have been given to the totality principle in the determination of penalty. It was further contended that the sentence imposed in respect of each charge was so excessive that the exercise of her Honour's discretion to impose the penalties she did was affected by error and outside the permissible range that could be imposed, given the nature and quality of the offence and the injuries manifested: see Narayan v Inspector Chamings [2007] NSWIRComm 281; (2007) 169 IR 414. 451We are unable to agree with the appellant that her Honour found that the injuries manifested in both TAS were all attributed to the one causative factor i.e., cumulative stress. In fact, the term is not used in the sentencing judgment. In any event, the issue is what caused the risk, not what caused the injuries. 452Given that we have found the offence in Matter 1392 was not made out, we are only concerned with the penalties in Matters 1390 and 1391. As we earlier stated, the maximum penalties for the two offences is $825,000 for each offence. Schmidt J determined that the appropriate penalties for the -two offences were $250,000 for the 10 March offence and $200,000 for the 15 March offence. Having regard to the principle of totality her Honour found that because there was an overlap between the offences, the final penalties should be $200,000 for the 10 March offence and $160,000 for the 15 March offence. That was a proper application of the totality principle. 453In R v Holder [1983] 3 NSWLR 245, Street CJ described the totality principle at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order. 454The application of the principle of totality where the penalty is a fine was considered by Kirby P in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704: The principle of totality is applicable where the penalty imposed is by way of fine: R v Sgroi ( 1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has special operation: see R v Brown (1982) 5 A Crim R 4034 at 407. 455In Makarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27] the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) stated: [27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 456Keeping in mind what was stated in Markarian, it falls to the Full Bench to re-sentence the appellant in Matters 1390 and 1391. We have considered the relevant objective and subjective factors and the principle of totality. We do not regard the penalties imposed by her Honour as being manifestly too high when regard is had to those factors to be taken into account in determining sentence. The penalties imposed by her Honour, in our opinion, properly reflect the appellant's criminality and in undertaking the task of re-sentencing we are unable to find any proper basis for imposing different penalties. Indeed, we consider those penalties are appropriate.
COSTS 457In light of finding that the offence in Matter No IRC 1392 of 2006 was not made out the question arises as to what effect that has in relation to costs at first instance and on appeal. We note in this respect the decision of Boland J, President regarding the stay of proceedings State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill [2009] NSWIRComm 122 where his Honour stayed the judgment and orders of Schmidt J subject to the appellant paying to the respondent an amount of $300,000. 458Unless either or both parties wish to address the Full Bench orally on the question of costs the issue will be dealt with on the papers. In that regard, the appellant is to file and serve submissions within 14 days of this judgment being delivered and the respondent shall have a further 14 days in which to respond.
JOHN HOLLAND (CA) 459We should, for the record, indicate that following the judgment in John Holland (CA) on 9 December 2010 the parties were provided with the opportunity of making supplementary written submissions if they so chose. The appellant declined the invitation. The respondent provided a two-page submission, essentially contending that the judgment demonstrated the lack of merit in the present appeal and supported the respondent's case in relevant respects. We have had regard to the respondent's supplementary submissions.
ORDERS 460The Full Bench makes the following orders: (1) The appeal in Matter Nos IRC 1390 and IRC 1391 of 2006 is dismissed. (2) In Matter No IRC 1391 of 2006 the appellant is convicted of the offence and fined an amount of $200,000. (3) In Matter No IRC 1390 of 2006 the appellant is convicted of the offence and fined an amount of $160,000. (4) The appeal in Matter No IRC 1392 of 2006 is upheld and the judgment and orders of Schmidt J in that Matter are set aside. (5) The stay orders of Boland J, President made on 30 July 2009 are dissolved. (6) The appellant is to file and serve submissions on costs within 14 days of the date of this judgment and the respondent shall have a further 14 days in which to respond. Unless the parties wish to be heard orally on costs, the question shall be determined on the papers.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2011
State of New South Wales (Department of Education and Training and Department of Juvenile Justice)
Cahill
[2005] HCA 25
(2010) 239 CLR 531
(2010) 262 ALR 569
(1993) 32 NSWLR 501
(1993) 32 NSWLR 683
(2005) 143 IR 57
(2010) 272 ALR 705
(1993) 178 CLR 477
(2004) 136 IR 449
(2010) 194 IR 189
(1987) 163 CLR 508
(1937) 59 CLR 467
(2005) 228 CLR 357
(2007) 169 IR 414
(2006) 159 IR 121
(2007) 81 ALJR 1021
(2007) 165 IR 7
(1990) 19 NSWLR 656
(1990) 37 IR 110
(2000) 49 NSWLR 21
(1945) 70 CLR 598
(2003) 211 CLR 476
(2000) 100 IR 23
(1987) 21 IR 477
(2000) 99 IR 196
(1998) 82 IR 80
(2002) 112 IR 245
(2008) 173 IR 465
(2002) 118 IR 207
[2010] HCA 1