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[2025] QCAT 540
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2025-12-12
Member P
Original judgment source is linked above.
[20] There were also documentary exhibits tendered which are not listed above. They were:
Copy of the Deputy Principal's diary entry of 5 February 2025 ('exhibit 15').
[21] I have given careful consideration to all that material in arriving at my decision, as well as the oral testimony and the oral submissions. In particular, I give credence to the oral testimony of the applicant, whom I thought was generally a credible witness, and indeed the only witness who was present in the classroom that day and was called to speak about what happened in that classroom.
[22] There are a number of matters that are not controversial or in dispute, namely:
[23] I find that the applicant advised the Deputy Principal of what had occurred on the afternoon of 5 February 2025, being the same afternoon that the incident occurred. The applicant's report to the Deputy Principal was then expanded by his OneSchool report of the same incident, wherein he confirmed that the cause of student TT's unconsciousness was the 'game' played between him and another student.
[24] The parties were on common ground that the considerations or issues giving rise to whether the applicant now poses an unacceptable risk of harm to children concern whether:
[25] Counsel for the applicant conceded that the applicant did not follow protocol for a serious incident. The emergency protocol was presented at the all-staff meeting conducted on Tuesday 28 January 2025, showing that it was discussed: "in an emergency dial 000 - call it first, then call the school emergency line by dialling 9 from any phone or call [phone number] from your mobile".
[26] The slide show which was presented during this staff meeting stated the following:
Life threatening or critical emergency, call 000. In case of an emergency involving: medical, student/ staff safety, fire, electricity, gas, fumes, water or asbestos call Admin emergency phone Dial Ext 9 from school landline, Dial 5582 7304 from mobile phone.
[27] A serious medical condition was defined as: "If suspected injury is a head knock (potential concussions), back/spinal injury, suspected fracture, seizure, unconscious, signs of heart attack, stroke, electric shock, uncontrolled bleeding/loss of body part, not breathing normally or more serious condition is suspected - an ambulance be called first, then office, office will notify parent".
[28] The applicant gave evidence that he had taught for ten years at the school where this incident occurred and had only taught at that school except for one year when he taught elsewhere. He acknowledged the existence of the emergency protocol that existed at the school, which he had been shown on a slide and which he must have seen. He accepted that he was at the presentation that referenced this protocol as well as other things, but had no recollection of it.
[29] On the day of the incident, he was in a class of grade eight students, aged 13 and 14. He was talking to three female students at the front desk and they were side by side. He was discussing with the girls their well-being, and he said it was emotional, impacted their education, and concerned the conduct of other members of the class. He did not go into detail about what this was. He said other students were working on schoolwork.
[30] He did not see the choking incident, but only saw the injured boy on the floor. He started asking the boy questions, including whether he could breathe, whether he had hit his head and so on. He looked at the boy's face and asked him questions to test his cognition such as his name, birthday, and family names. The boy answered these questions correctly. He asked the boy if he had been "choked out" and he said "no", but when he asked again, other class members said that he had been choked.
[31] The applicant said that he considered his options and his previous practice had been to send a student to the sick bay with a fellow student who was a friend. He was satisfied that the boy was in a satisfactory state to go to the sick bay, and they went off. The teacher stayed with the class for the remaining 10 minutes of the class period. Then, he locked the classroom and went up to administration and spoke to a staff member of the school and said that the boy had been choked out. The Deputy Principal then came into the same room and he explained what happened to her as well.
[32] He said that he spoke to the rest of the class and told them to be considerate of privacy and dignity issues and that if they needed support themselves to get help from an adult, but to respect the privacy of the injured boy and not spread stories of the incident via school gossip.
[33] He rejected the proposition that he told the students not to tell school investigators what had happened. I accept that evidence. It is to be noted that the students or some of the students involved spoke to the Principal and told her specifically what had happened that day and the next day after the incident, so there was, in fact, no concealment that occurred, and none of them acted on the so-called instruction not to talk about the incident.
[34] He said that the next day he told the students to come into the class in silence and told them that it was important for the boy's well-being, and he was OK. He said it was an incredibly dangerous thing they had done and had concealed it from him. He told them they should respect the boy's privacy and dignity and not to spread the story around the school.
[35] He says that on a later date he caught two students doing a chokehold and he stopped it and warned them of the danger and reported it. He said that he had never previously seen a student put in a chokehold. I accept that evidence.
[36] In relation to whether there were two prior choking incidents that day running for over 10 to 15 minutes, as one or more students said, or as other students said, he could not say.
[37] In cross-examination, he acknowledged the previous policy in dealing with emergencies had been changed, and their emergency phones were put in before that year. There were 26 students and nine did reports of what happened. There were three students at the front with him. It was put that it was suspicious that there could be nine students in one area of the classroom and should have been conscious of that. He didn't accept that they were nine there. He did not agree that they were four students involved in that choking.
[38] He swore that the students concealed their behaviour and collaborated on it afterwards, but he does not know how many were in the group and how many had broken up when he arrived at the scene. I accept that evidence.
[39] He said a student had come to tell him what was going on in this free time lesson which was arisen out of a cancelled sporting event. So, it was not an actual teaching class.
[40] In cross-examination, in describing what he told the students the next day, he said that he told them that it would likely affect him and that there were implications for everyone, reinforcing the seriousness for him as well if it occurred again. He said his exact words were that he had a teenage daughter to raise and it would affect his well-being, he could lose his job and someone would have to do a lot of paperwork. I accept that evidence.
[41] In re-examination, he said that until 2022, he was at another school and then had long service leave, and in January 2025, when this incident occurred, it was the first time he had been to this school since 2021. He said that the day after the incident, some students came up and apologised for concealing it from him the day before. I accept that evidence.
[42] The College has submitted that in cross-examination he presented as combative and defensive and refused to answer simple questions. In oral submissions it was explained that this referred to his initial refusal to answer a question about whether what one of the students said he said to them, was true. I generally found him to be a credible witness. He was not comparative or argumentative. He did appear somewhat defensive however that is not surprising given the circumstances.
[43] In oral addresses, counsel for the respondent explained this reference to him having presented as combative and defensive and refusing to answer simple questions as also referring to his resistance to answer questions about whether he called an ambulance. It was suggested that he did not initially answer this question. I did not observe any such reluctance but it is an issue of no real significance because the boy was sent to the sick bay, and if an ambulance was to be called, it could have been done from there.
[44] The second issue concerned whether, the day after the incident, he told the class that he could lose his job, a roof over his head and his license, and asked them not to tell anyone because a lot of paperwork would be required.
[45] Whether he agreed to having said that or not became controversial during closing submissions, because the parties could not agree that he accepted this proposition. And if he did accept, it is certainly directly inconsistent with the balance of his evidence which was to the effect that he did not tell the students not to tell anyone what had happened. Furthermore, at least one of the students had actually already given a version of events on the day of the incident and the applicant himself had accurately described the event immediately after the incident to school authorities. It is also inconsistent with other evidence from another student to the effect that he had encouraged them to tell the truth.
[46] The third issue was said to be his reluctance to accept how many students were involved and that he was defensive about this. I am not sure that he showed signs of being defensive about that, but clearly the fact that he had not seen the incident and that it had been hidden from him and that he only found out about it once he saw the student lying on the floor would make him defensive about the suggestion that he had failed to supervise adequately. In the end, not being prepared to accept how many students were involved is hardly a matter that affects his credibility, or suggest he is a risk to children. The case for the College itself relies on inconsistent versions as to how many people were involved.
[47] It was agreed that the ultimate question for me was to determine whether, having regard to who carried the onus of proof or not, he was presently a person who posed an unacceptable risk of harm to children and therefore should be the subject of a suspension.
[48] I flagged with counsel for both parties, but particularly that for the College, that it may be that because of the fact that these events had occurred so long ago, and that a suspension had occurred, as well as an investigation, a hearing before another member of the Tribunal and then me, then submissions before and after the hearings about any risk he posed, that there had been lessons learnt and changes undertaken by the applicant, which would mean that if he did once pose unacceptable risk because he was want not to properly supervise or some such matter, he had learnt from this incident and had changed his ways and was no longer likely to act in those ways which might pose an unacceptable risk.
[49] Reference was made to the fact that he had sworn to having made various changes to his teaching practices. The applicant gave unchallenged evidence that, following these incidents, he had undertaken additional training, being a review of the Public Service Code of Conduct, the Department of Education and Training Standard of Practice and an induction on the revised emergency procedure; and refined his classroom management skills after discussions with his Head of Department.
[50] I accept his evidence that if faced with a similar situation he would approach it differently. Indeed, he gave evidence that when faced with another choking 'game' in the playground whilst on duty some weeks after the index incident, he separated the students and reported the matter to the school leadership, inviting them to review via CCTV what had occurred.
[51] When asked to point to the specific things the College relied upon as demonstrating that he was an unacceptable risk, I was told that he lacked insight and accountability for the incident and that he continued to dispute how many students were involved in the incident. In fact, the students present cannot agree on how many students were involved in the incident. He did not see it.
[52] It is impossible to resolve the factual dispute about how long this incident went on for. Some say less than a minute, others say many minutes, perhaps 10 to 15 minutes as one student said.
[53] None of these students were called to give evidence for either side and the brief statements that they gave to teaching staff after the incident are not detailed or comprehensive. They are also contradictory.
[54] I was told that he had not engaged in some unspecified professional development, when he could have. He was asked no questions about that in cross-examination. No specific professional development was suggested to him.
[55] Written submissions referred to his failure to demonstrate through further training and learnings, his understanding of active supervision. It was submitted that the risk of recurrence was not merely possible, but real and substantial.
[56] The applicant points to the fact that in the 10 years he has been teaching he has never had a previous incident in which he had been accused of, or even less, shown to have failed to adequately supervise a class. He has never had anything similar or as serious as this happen in one of his classes.
[57] I find that on the objective uncontroversial evidence that this incident did not occur because of what the applicant did in his classroom or permitted to do his classroom or encouraged in any way. It was done in an unusual classroom situation, where lessons were not being taught. These students concealed what they were doing from him while he was dealing with other students. No one suggests otherwise. The injured student, in fact, initially lied about what had happened to him until finally, other students told the teacher what had in truth happened.
[58] The failure by the teacher to pay sufficient attention to what was going on in the classroom can, in part, if not in whole, be explained by the fact that he was distracted because he was doing another teaching function, which was to engage with other students at the front of the room who were expressing some concerns about what was happening in that class. Even if he might have or ought to have paid more attention to what was going on elsewhere in the room, in my view, that does not mean he is a teacher who is presently a person who poses an unacceptable risk of harm to children and therefore should be the subject of a suspension.
[59] If this had come at a time following a series of failures to properly supervise, or if it had involved active encouragement by the teacher, the position might have been different, although even then it might be possible to be persuaded that since then he had seen the error of his ways and no longer posed a risk of doing such things.
[60] In the reasons of Senior Member Aughterson in the decision to continue the suspension delivered 6 May 2025, he refers the College's reasons for forming the view that he poses an unacceptable acceptable risk and identified the allegations as "having students engage in dangerous acts while under his supervision". In fact, there was and is no basis whatsoever for considering that he posed an unacceptable risk for that reason because he had never had those students engage in those acts, rather, they had engaged in them without him knowing.
[61] Another matter that was suggested to show that he was an unacceptable risk is that he did not follow the emergency response plan, did not report a serious injury and provide proper assistance to an affected student.
[62] I find that whilst he did not know and therefore did not follow the emergency response plan, he has since become well familiar with it. He did, in fact, report the incident 10 minutes after it occurred and the period ended. I reject the proposition that he failed to provide proper assistance to the affected student because he attended to the student, checked his cognitive state and sent him with another student for medical attention whilst he continued to supervise the class for the rest of the period.
[63] In my view, that unique set of circumstances as presented that day is extremely unlikely ever to present itself again. Even if it did, or some other ill-discipline occurred in his classroom, I am confident that the applicant would deal with it appropriately, and is not now and is unlikely to in the future pose an unacceptable risk of harm to children because of any of those things, or indeed, anything else that has come to light.
[64] In submissions for the respondent, it was pointed out that he was on full pay whilst under suspension, but it could not be confirmed that this position would continue if the suspension was not lifted. It is a serious matter to deprive a person of their livelihood and the chance to protect their reputation as a teacher and to participate in one's chosen profession.
[65] In my view, to continue this suspension will achieve nothing in terms of minimising any risk of harm to children because, in my view, there is no such risk.
[66] Having regard to the age of the students involved in this incident and the passage of time since it occurred and the extent of conflict on the evidence as it already stands as to what occurred in the incident and what the applicant said afterwards, I am not persuaded the outcome of the investigation would show that he improperly failed to supervise students when he had an opportunity to do so or tried to influence the evidence of the students, as the respondent put it, or now lacks insight into emergency safety protocols or what actually happened in this incident, for which he should take responsibility.
[67] On the material before me, I am satisfied that Teacher RQW does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher RQW's registration as a teacher be lifted.
[68] The Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.[1] The Tribunal may make such an order if it considers it is necessary to avoid endangering the physical or mental health or safety of a person, to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice. We are satisfied that it is appropriate to continue the non-publication order subject to the necessary exceptions to permit the QCT to comply with sections 164 and 165 of the Act.
[69] The Tribunal considers that in the public interest a non-publication order should be made under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), to ensure that the teacher, any relevant child, the teacher's employing authority, or the school are not identified. The Tribunal prohibits the publication of any information that could identify the teacher, any relevant child, or the teacher's employing authority or the school.
[70] For the reasons that I have given, I order that:
Teacher RQW
Queensland College of Teachers [2025] QCAT 540
Queensland College of Teachers v LDW [2017] QCAT 48
Queensland College of Teachers v Teacher EDC [2019] QCAT 144
[13] The College submits that the applicant bears the onus of proof to satisfy the Tribunal that he does not pose an unacceptable risk of harm to children, and further that the standard of proof is the civil standard on the balance of probabilities as set out in Briginshaw v Briginshaw [1938] HCA 34. I do not agree with that proposition.