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: