The Crown in the Right of the State of New South Wales (Department of... [2005] NSWIRComm 198 | Case summary

The Crown in the Right of the State of New South Wales (Department of... [2005] NSWIRComm 198 | Case summary | Zoe

[13]

1 This is an appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912 from decisions of Walton J, Vice-President given on 31 March 2003 in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 (determination of guilt) and on 26 September 2003, in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 (determination of penalty) in relation to five charges laid against the appellant pursuant to s 15(1) of the Occupational Health and Safety Act 1983. FACTS 2 Walton J made extensive findings as to the facts. They are contained at [22]-[115] of the Vice President's first judgment. It is sufficient for the purpose of this appeal to summarise the main aspects of the factual circumstances of the case as his Honour found them. 3 The appellant operated the Kurrambee School for Specific Purposes at Werrington in the State. Kurrambee is a school for children with physical, intellectual or psychological disabilities that preclude them from attending a normal school. In early 2001, in anticipation of the charges heard by Walton J, an audit revealed that ninety-one students between the ages of four and twenty were enrolled at Kurrambee, seventy-seven of which suffered from a severe intellectual disability and fourteen of which suffered from a moderate intellectual disability. In addition, the "vast majority" suffered from at least one other physical disability, relating to vision, hearing, spasticity, behaviour, muscular dystrophy, epilepsy, diabetes, autism, cerebral palsy or being fed through a tube. Three broad bands of students at Kurrambee were identified: those with multiple disabilities; violent (or "challenging") students; and, students from support classes in mainstream schools whose needs had not been met. 4 Mr Harry Terry was the Principal of the School. Lorraine Kay Griffiths was a Teachers' Aide Special and was the victim of assaults by students in February and March 1999. It was these assaults, and assaults on other Teachers Aides, that led to the charges being laid against the appellant. Dr Jennifer Stephenson was the Assistant Principal at Kurrambee from 1997 to 1999. Dr Stephenson left Kurrambee in 1999 to take up a position at the University of Technology, Sydney, as Senior Lecturer in Special Education in 2000. 5 There was evidence of violence from students toward teachers and teachers' aides. Walton J noted the evidence of Mr Terry that it was difficult to provide much needed relief from working with students who required manual lifting and positioning and from violent students, when these two groups comprised the student population. Mr Terry also described the difficulties arising from the juxtaposition of unpredictably violent students unresponsive to communication (who, in the past, in Mr Terry's opinion, would have been in psychiatric or more segregated settings) with large numbers of severely physically disabled students, unable to protect or defend themselves from violent behaviour. This problem was underscored by the evidence of Dr Stephenson that there were a percentage of students with psychiatric disabilities outside the "competency" of all teachers. 6 In 1997 staff reported 25 injuries from student violence (which included hitting staff with furniture and other objects, head-butting and scratching) sufficiently serious to be recorded in the school register. The concern over continuing violence towards staff and other students was again raised by staff of the School toward the end of 1998. 7 On or about the first day of the school year, 1999, the Penrith District Office Special Education Consultant, Ms Julie Edwards, advised Mr Terry by telephone that the District Office had approved the enrolment at Kurrambee of two new students, including fifteen year old AK. These students came from a residential school institution for students with severe behavioural problems, the Hall for Children, which had been closed. His Honour records at [34]-[35] that: [A]ccording to Mr Terry's notes of 14 February 2001, the only information provided to Kurrambee in relation to AK was Ms Edward's verbal advice that AK had a history of violent behaviour. Under cross-examination about his conversations with Ms Edwards, Mr Terry stated that, in the process of trying to obtain information, he remembered being advised that following the closure of the Hall for Children information was difficult to obtain. Mr Terry could not remember whether Ms Edwards told him this directly or whether his deputy spoke with Ms Edwards, and subsequently advised him of the result. No information was provided by AK's guardian, DoCS.

[14]

35 AK's mother, Mrs K, completed the enrolment forms for AK on 28 January 1999 at the school in the presence of Mr Terry. Under the heading "medical problems" on the defendant's enrolment form, Mrs K wrote simply "epilepsy, behaviour problems". On the Kurrambee enrolment form, in answer to "special precautions that should be taken with the student regarding supervision in the playground", Mrs K wrote "runs away (McDonalds)". Mr Terry gave evidence that he asked Mrs K about AK's behaviour, but her answers did not give any indication of the intensity or severity of the violence AK exhibited on 9 February 1999. However, he was used to mothers understating such behaviour. No other paperwork was provided. Kurrambee later received an offer of enrolment for AK dated 6 April 1999 from the District Office. 8 A report written by a consultant to DoCS, Mr Philip Petrie, regarding AK dated 12 January 1999 and signed by Mrs K (AK's mother) on 28 January 1999, was discovered in the school files in May 1999, after the assault. Walton J noted at [40] that: Mr Terry advised under cross-examination that, had he known of the report, he would have shown it or given copies to AK's new teacher and to the teacher's supervisor. Mr Terry's enquiries of these two people indicated that this had not occurred. Further, the reticence of AK's mother to discuss AK's behavioural problems (beyond a general acknowledgement) with Mr Terry on 29 January 1999 makes it most unlikely that such a detailed report was handed over by her at the same meeting. 9 The report on AK stated he was aggressive; aggression could be expected at any time; and, that when aggressive AK would often physically injure others. Mr Petrie recorded the following particular behaviour: [AK] will throw objects at others (particularly staff); hit others with his fists or an open hand; push others over; kick others with his feet, targeting their knees, shins, groin or head, often causing physical injury. 10 Mr Petrie stressed in his Report that only people who knew AK well and were confident and competent in managing his behaviour should be left alone with him. Mr Petrie advised carers, in the event of threatening behaviour, to maintain a distance of at least two metres and to be aware of all available exits and stated that, if alone in the residence with AK, they should not undertake activities which may pose a problem should they need to leave the house (such as bathing other residents or cooking). Such activities should only be undertaken when two supervisors were present. Staff were exhorted to follow the guidelines closely, at all times, in the interests of safety and there was provision for staff to sign and date a copy of the report to confirm that they had read and understood it. 11 In relation to staff awareness of Mr Petrie's Report Walton J found at [41]: I have no doubt on the evidence that at the time of the assault on 9 February 1999, Mr Terry and his staff were unaware of the existence of Mr Petrie's report. Nor do I have any doubt that the experienced, dedicated staff of Kurrumbee, sensitive to the issue of aggressive behaviour in severely intellectually disabled students and aware that AK came from an institution for students with severe behavioural problems, were actively searching for such information. Before AK's first day at school Mr Terry made enquiries of Mrs K; enquires were made either by Mr Terry or by his deputy of the defendant; and, in the first week, Mrs Griffiths advised Mr Terry of AK's worrying behaviour and asked Mr Terry if there was any relevant information on AK to which he replied there was not. Finally, I accept Mr Terry's evidence that he was advised by the defendant, either first or second-hand, in response to these enquiries for information, that information was difficult to obtain. I am prepared to infer from these circumstances that the defendant did not provide the report to the teachers and aides who would be responsible for supervising AK. Indeed, I consider any inference to the contrary would be inconsistent with Mr Terry's evidence, in the context of his active search for information. 12 There was early concern expressed by staff at AK's behaviour. In his classroom AK exhibited violent behaviour such as kicking staff, students and occupied wheelchairs; punching others' heads, shoulders, backs and arms with clenched fists; throwing large items and pushing objects such as tables, chairs and shelf units or cupboards over. Walton J found at [48], "This evidence, in conjunction with Mr Petrie's detailed report commissioned for the purpose of ensuring the safety of people who came into contact with AK, clearly demonstrated that AK was a dangerously violent student." 13 The New South Wales Teachers' Federation had called a State-wide strike on 9 February 1999. In anticipation of the strike, Mr Terry conformed to his usual strike practice; he asked each of his teachers whether they would strike or attend work and then sent a note to guardians to advise whether their child's teacher would be at work. If not, Mr Terry advised guardians that the school would only be able to provide minimal supervision, predominately by aides. Mr Terry gave evidence that, in the event of a strike, Principals were instructed by the Director-General of the appellant to keep all schools open. On the day of the strike six teaching staff, in addition to the Principal, reported for duty, as did 15 teachers' aides. Nine teachers were on strike and one teacher was on sick leave. According to Mrs Griffiths, 42 students attended school that day. 14 Walton J found at [51]-[53]: 51 Mr Terry was unable to predict accurately the number of students who would attend school on a strike day. Usually, in the event of a strike, the teachers who were present would take their classes from the playground (where the students played before classes on normal days) to their rooms, leaving the students without teachers and any remaining staff in the playground. Optimal supervision arrangements would then be made for the day's classes, depending upon the staff to student ratio and the ages, abilities and behaviour of those remaining students. While this assessment was taking place, the students could be supervised in a group.

[15]

52 However, on 9 February 1999 it was raining and the students, unable to play in the playground, were escorted by teachers and aides directly into classrooms as they arrived; other teachers and aides remaining in the classrooms to supervise students who had already been brought inside. This procedure had two immediate consequences: it made the head count more difficult and the change in routine (coupled with the weather) unsettled the students. The task was complicated by the fact that mobile students would run away if a staff member left the classroom to place another student. 53 In assessing the needs of the school for the day, Mr Terry was assisted by one of his teachers, Mr McKenzie, Assistant Principal, who was acting in the capacity of Deputy Principal (the Deputy Principal, Mr Sterry, being on strike). In evidence, Mr McKenzie described his duties on the morning of 9 February 1999 thus: to move the children from the arriving buses to the classrooms; to ensure there was someone in the classrooms to supervise those children; to visit other classrooms to find out which students had arrived in the meantime; and to make decisions about the most effective distribution of staff and students in view of the nature and number of students attending. 15 In the circumstances, Mrs Griffiths advised Mr Terry that she did not wish to be left alone with her class without a replacement teacher, nor in a shared arrangement involving the teacher next door with the bi-fold doors between the two classrooms open. There was evidence that another teacher, Mr McKenzie an Assistant Principal, was advised to stay with Mrs Griffiths (although Mr McKenzie could not recall being told this) but as events occurred he left the classroom to continue the head-count in other classrooms, thereby leaving Mrs Griffiths alone. Walton J described what happened next: 60 Mrs Griffiths described the students during this time as very restless, some throwing classroom objects around the room, some crying, and some screaming a lot. It was very noisy. The following events took place in a matter of minutes. JB [another student with severe behavioural problems] become very agitated when another violent student, SH, repeatedly threw a heavy cassette player onto the classroom floor in the direction of NK. According to the enrolment audit, SH had been at the school since at least 1987 and was, in fact, specifically mentioned (along with nine others, including JB) in the staff meeting notes of 5 November 1998 in relation to violence by students against staff.

[36]

23 Walton J noted that the appellant had submitted that the charges were misconceived because they allege failures on the part of the appellant once the risk had already arisen (the risk being the exhibition of aggressive and/or violent behaviour, demonstrated by SH before any assault took place) thereby negating any possible causal nexus; or, in the alternative, that the prosecutor was unable to demonstrate that a step required to have been taken by the defendant would have eliminated the entire risk. His Honour analysed the nature and meaning of risk in the context of the established case law. At [140]-[142] the Vice President concluded: 140 The distinction must be drawn between a risk, such as the violent behaviour of a member of the public or severely intellectually disabled student, occurring independently of the employer, the general nature of which may be known, and the risks which arise from the manner in which the employer exposes the employee to that risk. To put it another way, the employer fails to ensure the health, safety and welfare at work of its employees by failing to appropriately equip or protect them from risks inherent in their work (as opposed to risks which are merely speculative or unduly remote - see Drake at [145]), notwithstanding that such risks may be caused by external factors, known or unknown. As Hungerford J noted at paragraph 20 of WorkCover v Police Service (No 2) , the duty imposed upon the employer is directed at obviating risks where the circumstances create a potential danger to the health and safety of employees at the workplace. It is upon this distinction between a specific risk (the particular actions of an individual in a given context on a given day) and a general class of risk that analysis must concentrate, for focussing too closely on the specific risk immediately preceding the incident under scrutiny can lead to the error so frequently warned against: concentrating on the incident itself. Appreciation of this distinction also makes it clear that the defendant's preliminary submissions are based upon the wrong risk: when attention is focussed upon the risks which arise from the manner in which the employer exposes the employee to the risks, the defendant's submissions in this case, as in WorkCover v Police Service (No 2), fall away.

[40]

26 In summarising its grounds of appeal, the appellant submitted there were four categories of error: (1) A failure by his Honour to adequately consider whether the elements relied on by the Respondent as failings established the offences and/or considered causative factors that were not included in the said charges; (2) A failure by his Honour to consider adequately or, at all, questions about the interaction of the Occupational Health and Safety Act and other legislation that applies by reason of the Appellant's operation of Kurrambee school; (3) A failure by his Honour in giving any or, too much weight to matters irrelevant to the statutory defences in his analysis of the charges; and (4) A failure by his Honour in failing to give any or, sufficient weight to public interest considerations in the education of students with disabilities. 27 This summary of the appellant's grounds of appeal does not assist much in elucidating the real issues on appeal. We would identify the two central issues raised by the appellant as being the identification of the relevant risk and causation. To be more precise, it was asserted by the appellant that: (1) In identifying the risk that arose on 9 February 1999 in relation to Mrs Griffiths, Walton J insufficiently distinguished between the "ever present" risk that arose out of the nature of the disability of the students and the risk that was said to arise from the actions of individual students on 9 February1999 when Mrs Griffiths was assaulted. The error into which it was submitted his Honour fell was that he focused on the precise circumstances of the assault on Mrs Griffiths on 9 February 1999 and not on the general class of risk referred to in WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 and in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 at [133]. Thereby, it was submitted, his Honour's analysis of risk and causation was misdirected. (2) It was not established at trial to the requisite standard a causative link between the failures alleged in the charges and the risks to health and safety. For instance, it was submitted the failure to provide a personal duress alarm did not cause the risk of assault from students who demonstrated aggressive and/or challenging behaviour. It was submitted that this risk existed or had arisen prior to any alleged failures on the part of the appellant thereby negativing any possible causal nexus. It was particularly asserted that because the appellant did not create the risk to health and safety and could not control the risk it could not be said the acts or omissions of the defendant constituting the alleged breach of statutory duty caused the risk.

[42]

Risk 30 It may be seen from his Honour's first judgment that he distinguished between two types of risk i.e., a general risk and a specific risk. The general risk in this case was said to be the risk of assault by severely intellectually disabled students demonstrating aggressive and/or challenging behaviour including AK, SH and JB, the general nature of which may be known by the appellant but occurring independently of the appellant. The specific risk was said to be the risk of assault arising from the particular actions of an individual in a given context on a given day: see [140] of his Honour's first judgment. We take it that the specific risk to which his Honour was referring in this case was the risk of assault on Mrs Griffiths by AK and SH on 9 February 1999. 31 It is apparent from his Honour's judgment and his reliance on Police Service (No 2), he considered the correct approach was that although the appellant may not have been able to control or otherwise affect the conduct of the students, the question was whether, in light of the failures alleged in the charges, the appellant failed to take steps to protect the employees at the School from the violent and unpredictable behaviour of students and thereby ensure the health, safety and welfare of the employees. 32 His Honour eschewed reliance on what he described as the specific risk of assault arising from the actions of AK and SH on 9 February because of the danger that it could obscure the relevant risk, and could also misdirect an analysis of causation. 33 The central issue in respect of the identification of the relevant risk in Police Service (No 2) was whether the risk was the unpredictable and criminal conduct of Mr McGowan over which the defendant had no control, or the risk arising from the acts or omissions as alleged in each charge in circumstances where the two officers were required by the defendant to work in an environment where they were at risk of being shot or otherwise suffering physical harm. Hungerford J referred to the risk created by Mr McGowan as the "specific risk", a risk not known to the defendant. However, his Honour held that the relevant risk was the latter risk, that is to say, the risk arising from the various failures of the Police Service in a situation where the two police officers were required to work in an environment where the two officers were at risk of being shot or otherwise suffering physical harm. This risk, his Honour held, was well known to the defendant and the defendant was, therefore, responsible under s 15 for its failures in ensuring against those risks. 34 The parallel that the Vice President sought to draw with Police Service (No 2) was that just like the specific risk presented by Mr McGowan's unpredictable and criminal conduct, the specific risk in this case was the unpredictable and violent behaviour of AK and SH on 9 February 1999 in assaulting Mrs Griffiths and over which the appellant had no control. The relevant risk, however, referred to by his Honour as the general risk, was the risk of being required to work in an environment where staff of the school, and in particular, Mrs Griffiths, were at risk of assault by severely intellectually disabled students demonstrating aggressive and/or challenging behaviour including AK, SH and JB, a risk that was known to the appellant. 35 We consider Walton J's identification of the relevant risk was correct.

[43]

36 The appellant accepted that there was no error of law by Walton J in distinguishing between a specific risk and a general risk but it was asserted that his Honour did not apply the principles correctly. It was submitted in identifying the risk that arose on 9 February 1999 in relation to Mrs Griffiths, his Honour insufficiently distinguished between the "ever present" risk that arose out of the nature of the disability of the students and the risk that was said to arise out of the appellant's failures as alleged in each of the charges. In this respect, it was submitted his Honour fell into the very error he had warned against, "[t]hat is to say, in reaching his findings as to the risk alleged, his Honour focused on the precise circumstances of the incident to Mrs Griffiths on 9 February 1999 and not on the general class of risk referred to in the Police (No 2) case." 37 Whilst we accept that his Honour correctly identified the relevant risk, there is a very fine distinction between the general risk found by the Vice President, namely, the risk of assault by severely intellectually disabled students demonstrating aggressive and/or challenging behaviour which was known by the appellant, and the specific risk of assault on Mrs Griffiths on 9 February 1999 by severely intellectually disabled students, namely AK and SH, who had previously demonstrated aggressive and/or challenging behaviour. In fact, we question whether any distinction should be made. It seems to us that what occurred on 9 February, namely the assault on Mrs Griffiths by the two students, was more in the nature of a materialisation of the general risk and that it only confuses matters to identify a separate, specific risk of assault. 38 In Police Service (No 2), Hungerford J referred to Mr McGowan as a separate, specific risk that might not have been known to the defendant. But in this case the distinction is not so clear: both AK and SH were known to be severely intellectually disabled and had been known to demonstrate aggressive and/or challenging behaviour towards teachers and teachers' aides at the School; they were known to be part of the general risk. We do not consider it was entirely accurate to portray the situation as being that a general risk of assault existed on 9 February 1999 but that SH and AK, who constituted an integral part of that general risk, constituted a separate, specific risk. The conduct of AK and SH on 9 February was merely a manifestation of the general risk or, to be specific, the risk pleaded in each of the charges. 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.

[45]

Causation 41 It must be kept squarely in mind that the risk here pleaded was the risk of employees, in particular Mrs Griffiths, being assaulted on 9 February 1999 by students demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. This was the relevant risk identified by Walton J and the appellant accepted that this was the risk but not one created by, or under the control of, the appellant. 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. 43 It was further submitted by the appellant that as it did not cause or create the risk of assault by students demonstrating aggressive behaviour and that the risk existed prior to any act or omission constituting the alleged breach of the appellant's statutory duty by virtue of the severe intellectual disabilities suffered by the students, there could be no causal connection between the appellant's alleged failures and the risk to health and safety. In other words, it could not be said the breach of the employer's statutory duty caused the risk. 44 The causation issue cannot be dispensed with on such narrow grounds. It is true that there was an ever-present risk of assault from severely intellectually disabled students demonstrating aggressive and/or challenging behaviour. But the appellant cannot escape liability by contending simply that it did not create the risk. If that were the case the objects of the Occupational Health and Safety Act in s 5(1)(a) and (b) would be defeated and the plain words of s15 (and s16) of the Occupational Health and Safety Act would not be given effect. 45 Causation has to be viewed in a common sense and practical way. What has to be considered in this case, given the way the charges are framed, is whether the appellant's acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when the employee or employees were exposed to the risk. A risk might be quiescent and the measures in place to prevent exposure to the risk may be adequate but that may change because the acts or omissions of the defendant caused this to be so; the risk to health and safety may increase or become more serious as a consequence of the appellant's acts or omissions. 46 It is an untenable proposition that although a defendant was aware of a risk to health and safety it had not itself created and had taken steps to avoid employees being exposed to that risk that it, nevertheless, should not be held liable if the risk increases and the defendant did not take steps commensurate with that heightened risk to prevent harm to employees. Prior to 9 February 1999 the appellant was aware of the risk of assault and of the need to take measures to protect staff from unpredictable and violent students and did so. It cannot be successfully contended by the appellant that in circumstances where its acts or omissions led to a heightened risk of assault on a particular day in particular circumstances (if that be the case), it is not liable because the risk of assault by violent and unpredictable students was pre-existing and not of its making. 47 In Chappel v Hart [1998] HCA CLR 55; (1998) 195 CLR 232 Gaudron J observed at [7] (references omitted): The argument that the damage sustained by Mrs Hart was simply the loss of a chance must be considered in a context concerned with the assignment of legal responsibility. In that context, philosophical and scientific notions are put aside and causation is approached as a question of fact to be answered "by applying common sense to the facts of [the] particular case." That is so both for the question whether a particular act or omission caused any damage at all and for the question whether some particular damage resulted from the act or omission in question. 48 In the same case McHugh J stated at [27] (references omitted): Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring. 49 In our opinion, if on an assessment of the objective facts a defendant is shown beyond reasonable doubt to have failed to ensure the health and safety of employees, and that failure was a substantial or significant cause of the risk of assault, such risk to be assessed at the time of exposure to it, or the failure materially contributed to that risk, then the causal connection is made out. 50 In Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33, Boland J found that in considering whether a causal nexus exists it is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way": see Cahill at [46]-[49]. We consider his Honour was correct in that view.

[48]

52 It was submitted for the appellant that by finding that the risk to Mrs Griffiths arose from the fact that Mr McKenzie was not present in the class room on 9 February 1999, his Honour had included in the finding an assumption, unsupported on the facts, that the presence of a teacher, or any other member of staff would have eliminated and/or controlled the risk of an assault by one of the students and in particular, AK. In taking issue with his Honour's approach, the appellant relied in part on the judgment at [147] where his Honour noted that there was no evidence that a change in the general staff ratio would decrease the risk of assault on staff and that "…the general staff ratio was never really examined in the context of risk from violent behaviour." Notably, it was said, the presence of a teacher on 8 March 1999 did not remove or decrease the risk of assault. 53 In the alternative, it was submitted, there was no basis for the conclusion by his Honour that the presence of Mr McKenzie would have been ameliorative of the risk of assault by AK. AK was not familiar with Mr McKenzie in the way he was with Mrs Griffiths with whom he had been since he joined the school. That is to say, the presence of a new teacher in the room with whom AK was not familiar, may not have had the effect relied on by his Honour. 54 Mr Rothman of senior counsel for the appellant submitted the events that were most likely to have triggered the aggression and violence by AK on the day, from the evidence of Dr Stephenson, were events over which the appellant had no control. In particular, the appellant had no control over the strike; the weather; the fact that the students found any change in their routine unsettling; or that aggression and/or violence by one or more students could trigger the same response in other students. 55 In the alternative, if the Court did not agree that the matter should be dismissed, the appellant submitted that a defence under s 53 of the Act was established. It was contended that there were no reasonably practicable measures or measures within the appellant's control that would have avoided the risk on 9 February 1999. 56 The Vice President found that the appellant had breached its statutory duty by failing to provide additional human resources on 9 February 1999. At [148] - [153] his Honour stated: 148 It is to the second particular of this charge, "failing to provide additional human resources", limited by the prosecutor in submissions to the day of the strike, that attention must focus. The real culpability of the defendant, in the context of this charge, relates to Mrs Griffiths' position on 9 February 1999 once Mr McKenzie departed: one of two aides supervising ten students, each of whom was severely disabled, six of whom had severe behavioural disorders, three of whom were known to be violent (albeit that in the case of AK the extent may not have been known), one of whom was known to abscond regularly, and some others of whom were in wheelchairs. That position was simply untenable. 149 Mrs Griffiths herself knew it was untenable, and specifically requested the presence of a teacher: she advised Mr Terry that she did not want to remain in that divided classroom with another aide, on that day, without a teacher present. Mr Terry knew it was untenable: he agreed with Mrs Griffiths; directed Mr McKenzie to supervise the divided classroom; and immediately tried to remove JB from the equation. The evidence in relation to JB himself makes the unacceptable nature of the situation abundantly clear: it was well known that this student was likely to become violent or to abscond without notice and, in fact, he frequently required individual supervision. In the context of two other violent students, on a disrupted and therefore unsettling morning (making aggressive behaviour more likely on the evidence of Dr Stephenson), and vulnerable students in wheelchairs who would not be able to defend themselves, it was clear at the time that the situation had the very real potential (perhaps even likelihood) to overwhelm two aides, which is what in fact happened. In a situation where one aide may have to engage or retrieve JB (a situation known to be likely at any given time) it was clear that the remaining aide would be in the invidious position of having to protect both herself and vulnerable students from potential violence (again, a well known risk, rendered more probable on the day of the incident by the unsettling circumstances) from more than one source while supervising nine severely disabled students five of whom suffered from severe behavioural disorders. In fact, Dr Stephenson gave evidence that it would be very difficult for one person to manage two violent students, because calming them down requires a fairly intensive individual approach. Mrs Griffiths' evidence that at any one time (on a normal school day with a teacher present), there would always be one disruptive student in a class of six severely disabled students, is particularly telling.

[50]

152 The defendant's submissions in relation to causation centre on the premise that there can be no liability unless the identified risk is capable of complete elimination. In relation to this charge, for example, the defendant submitted that it did not matter how many staff were present, it would not be possible to ensure the absence of violent or aggressive behaviour on the part of all students. I have already rejected this general submission in my earlier discussion of principles, and it only remains to observe that the defendant did not challenge causation under this charge on any other basis. 153 It is clear that the defendant's failure to ensure that Mrs Griffiths was not left alone in that divided classroom with those students caused her to be exposed to a risk of assault and I thereby find the offence proven, subject to any defence. 57 It is readily apparent from the facts found by Walton J and which were largely uncontested by the appellant that the undercurrent of risk of assault by violent and unpredictable students that had existed at the School increased to flashpoint on 9 February. The question is whether the heightened risk can be attributed to the acts or omissions of the appellant. 58 The appellant contended that the risk confronting Mrs Griffiths on 9 February was caused by external factors: the weather; the strike; the fact that the students found any change in their routine unsettling; or that aggression and/or violence by one or more students could trigger the same response in other students. Alternatively it was contended there was no evidence or insufficient evidence to support the conclusion that additional human resources would have avoided the risk. 59 There is no doubt the external factors referred to by the appellant contributed to the increased risk. But that does not rule out a finding that acts or omissions of the appellant may have also materially contributed to the risk. 60 The appellant relied upon the evidence going to the incident on 8 March 1999 involving Ms Griffiths to illustrate that even in a situation where there was a staff ratio of one teacher and one aide to a student the risk of assault could not be controlled or eliminated, even when a teacher was present, because of the unpredictable nature of how the risk could be manifested at any time. It was submitted: The events on 8 March 1999 are similar to the events on 9 February 1999. The general risk in each instance was identical i.e. the random, unpredictable act of a disabled student. The event on 8 March 1999 occurred in the playground when a teacher, Mr Terry was present with Ms Griffiths. The propensity for student JB was well known to the Appellant and its employees. In fact JB was the very student Mr Terry was seeking to make other arrangements for on 9 February 1999 because of the concerns he had over his potential behaviour when staff numbers were reduced by a strike. An assessment had been carried out on JB. Yet the circumstances surrounding the incident, which occurred on a normal school day with no teachers' strike, revealed no 'causative' acts/omissions by the Appellant. However, for the events on 9 February 1999 (being a day on which a teachers strike had been called, when the weather was wet and the normal routine of the school disrupted), his Honour held the Appellant was liable for what the Appellant says were the same random acts of another disabled student AK, when there is no evidence that any step of the Appellant was causative of this risk or failed to prevent the effect of the damages. 61 It is to be noted that Walton J never found that an offence had been made out in respect of the 8 March incident. What his Honour said about it was set out at [141] of his first judgment: Although it was only pleaded by the prosecution in the charge relating to counselling [a charge not made out], the assault by JB on 8 March 1999 was frequently used by the defendant in support of this argument. However, the fact that the assault by JB on 8 March may not have been preventable, or may not have been caused by a failure on the part of the defendant, is no answer to the charge that other assaults, by other students, could have been prevented and were caused by failures on the part of the defendant. 62 The circumstances of the attack on Mrs Griffiths on 8 March was markedly different to what occurred on 9 February. On that day: Mrs Griffiths advised Mr Terry that she did not wish to be left alone with her class without a replacement teacher; Walton J accepted, as he was entitled to, the evidence of Mrs Griffiths and Mr Terry that Mr Terry directed Mr McKenzie to supervise the divided classroom but Mr McKenzie departed; the students became very restless and it was very noisy; JB become very agitated when another violent student, SH, repeatedly threw a heavy cassette player onto the classroom floor in the direction of NK; NK, a student without hands or legs, was restricted to a wheel chair and unable to defend himself; Mrs Griffiths moved NK away from SH to the adjoining classroom, and then returned, only to be struck without warning by SH; AK advanced on NK in a threatening manner; Mrs Griffiths moved to stand between NK and AK in order to protect NK, whereupon AK kicked her on her upper right leg; JB absconded and Ms Crompton left to pursue JB; Mrs Griffiths was left alone to supervise the remaining nine students; AK immediately kicked Mrs Griffiths again and then with both hands raised a chair above his head; Mrs Griffiths attempted to remove NK to safety when her way was blocked by AK, who barred the door, again raising the chair above his head; Mrs Griffiths decided to get to the telephone on the classroom wall; as she called Mr Terry for help AK kicked her in the back; Mr Terry came quickly and restrained AK.

[51]

63 Given the above circumstances, described by Walton J at [148] of his first judgment, it is, in our opinion, a matter of plain common sense that if Mr McKenzie had been present in the classroom at the time Mrs Griffiths was exposed to the risk of assault his presence would have had the effect of reducing the risk. His presence would have surely meant that the risk did not escalate or become a more serious potential danger. Whilst we accept that the presence of Mr McKenzie would not have eliminated entirely the risk of assault by violent and unpredictable students, we consider that on 9 February 1999 that risk escalated to a more serious level because of the absence of an additional staff member. It may, therefore, be safely concluded beyond reasonable doubt that the failure of the appellant to provide additional human resources in the face of the potential danger to which Mrs Griffiths was exposed on 9 February 1999, after Mr McKenzie left the classroom, materially contributed to a risk to Mrs Griffiths' health and safety. 64 The appellant relied on the defences available under s 53 of the Act. The appellant acknowledged the burden of proof to establish the defences falls on the defendant in the proceedings. The standard of proof required is the civil standard i.e., on the balance of probabilities. See Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 65 In relation the defences Walton J stated at [154] and [156]: 154 It remains to consider whether the defendant may avail itself of a defence under s53 of the Act. I think not. The defendant submitted that defences were available to it under subsections (a) and (b) of s53 of the Act on the basis that the rain and the strike, which were outside the control of the defendant, combined to destabilise the students and increase the risk of aggressive behaviour. The defendant's other submission in relation to a defence (that the precise cause of violent behaviour in a student is not known and is therefore outside the control of the defendant) has been dealt with at length in my discussion of general principles: to reiterate, the defendant is focussing on the wrong risk. As I have already extracted from the paragraph 24 of the judgment of Hungerford J in WorkCover v Police Service (No 2) , although the defendant may not be able to "control" or otherwise affect the conduct of aggressive persons who confront employees from time to time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in the face of such a known and predictable class of risk. … 156 Although I agree that it would be impracticable to require the defendant to obtain additional staff at short notice in the event of a teachers' strike in order to maintain staffing ratios, the prosecutor's submissions on this particular of the charge make it clear that the allegation relates to the resource provided to assist Mrs Griffiths in relation to the students under her supervision that day. There were many options which were available to the defendant (in terms of reorganising resource or otherwise) which would have reduced or eliminated the risk of assault, ranging from ensuring that Mr McKenzie did not leave his post as responsible teacher in that divided classroom; allocating an additional staff member (perhaps Mr McKenzie) to supervise JB individually until he could be collected by his carers; placing students with a known propensity for violence in a separate area without vulnerable students with a higher concentration of staff; restricting access to students with a known propensity for violence and thus changing the resource ratio from the other side; to closing the school entirely, in view of the limited resource and intractable demands for supervision in a school such as Kurrumbee. It is not the function of the Court to determine the precise measures which should have been taken (see WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 1) (1999) 91 IR 119 at 126), but all of these measures were practicable and within the defendant's control on the day of the strike. The defendant did not suggest otherwise. The fact that the weather and the strike were outside the control of the defendant does not absolve it from taking measures which were within its control and which would have reduced the risk. In fact, the knowledge of those two exacerbating factors placed it under a greater obligation to protect against known risks which were consequentially greater. 66 As to the defence under s 53(a) of the Act, that it was not reasonably practicable to comply with the Act, a central element of the appellant's submission was that it was not reasonably practicable in the circumstances to make arrangements to provide additional human resources. However, we do not consider the appellant discharged its onus in this respect. It was reasonably foreseeable that in the circumstances of the classroom on 9 February 1999 the risk of assault by students might increase. Mrs Griffiths herself knew the position was untenable, and specifically requested the presence of a teacher. She advised Mr Terry that she did not want to remain in that divided classroom with another aide, on that day, without a teacher present. Mr Terry knew the position was untenable; he agreed with Mrs Griffiths and directed Mr McKenzie to supervise the divided classroom then immediately tried to remove JB from the equation. Once Mr McKenzie departed it left the untenable position of two aides supervising ten students, each of whom was severely disabled, six of whom had severe behavioural disorders, three of whom were known to be violent, one of whom (JB) was known to abscond regularly, and some others of whom were in wheelchairs. 67 There was no satisfactory reason given why an additional resource could not have been provided in such a potentially dangerous situation. For instance, there was no evidence that other teachers and teachers' aides at the School were confronted with a similar situation and could not be spared. Further, as the respondent submitted, Mr Terry was not tested in cross examination as to it being impracticable or not within the control or power of the Principal (and therefore the appellant) to achieve the following: compliance with the request of Mrs Griffiths to not work without a teacher present; and, to have Mr McKenzie remain in the divided classroom as per the Principal's direction.

[52]

68 Furthermore, it was submitted, clarification was elicited in cross-examination by the appellant that Mr Terry on 9 February 1999 had to get JB out of the school for everyone's protection, including the student's own safety. Mr Terry on that particular morning had limited knowledge about AK. There was no suggestion that segregating students in that way was: not practicable; not within the control of the appellant; discriminatory; or prejudicial. 69 In the circumstances, it is impossible to accept that it was not reasonably practicable to avoid leaving Mrs Griffiths and Ms Crompton to their own devices in the knowledge that JB was a known absconder (and would have to be pursued if he did abscond) and three of the students were known to be violent and had in the past attacked other students and staff. Mr Terry recognised the seriousness of the situation because he asked Mr McKenzie to supervise the divided classroom. He did not, however, take adequate measures to either impress on Mr McKenzie the need to remain at least until Mr Terry returned from making arrangements regarding JB or take other measures, such as allocating an additional staff member or arranging for those students with a propensity for violence to be temporarily segregated and supervised by a higher concentration of staff. It does not seem to us that temporary segregation to avoid an outbreak of violence could possibly be regarded as unfair or discriminatory or contrary to the objects of the Education Act 1990 in circumstances where teachers had gone on strike, apparently without regard to how the School was to cope in their absence, and where the Department of Education and Training had not made adequate arrangements to cater for circumstances such as those that developed in Mrs Griffiths' classroom on 9 February 1999. 70 The appellant submitted that in determining the risk to which Mrs Griffiths was exposed, Walton J failed adequately to take into account the following evidence: (i) Teacher's aides provided supervision of students at various times during the day; (ii) Ms Griffiths was an experienced specialist Teachers Aide; (iii) An assault by student SH on Ms Griffiths occurred whilst Ms Crompton was present in the room; (iv) Ms Crompton was present when AK kicked Ms Griffiths in the leg; (v) Ms Crompton only left the room after being told to do so by Ms Griffiths; (vi) Ms Griffiths did not ask Ms Crompton to seek assistance by phoning; (vii) That up to the time when Ms Crompton left the room Ms Griffiths felt she was in control of the class; (viii) The students stayed in their own class room areas despite the bifold door being open; (ix) Ms Griffiths was aware that AK had previously shown aggressive and/or violent behaviour; (x) At the time AK began to move towards student NK the telephone was approximately 10 metres from where Ms Griffiths was standing; (xi) The period of time from when Ms Crompton left the room to when AK assaulted her was a 'few minutes'; (xii) The period of time from when SH assaulted Ms Griffiths to when she phoned Mr Terry was a 'few minutes'; (xiii) The period of time from when Mr McKenzie left the area outside the classroom to when Ms Griffiths phoned Mr Terry was a short period of approximately 15 minutes or less; (xiv) Mr McKenzie did not notice any inappropriate behaviour by the class; (xv) An inference is available that Mr Terry also did not observe any inappropriate behaviour at the time he was near the classroom; (xvi) The evidence of Ms Griffiths was that the students were noisy and disruptive from the start. Nevertheless Ms Griffiths felt sufficiently in control to send Ms Crompton after JB and not direct her to call for assistance; (xvii) It is unlikely that Ms Crompton would leave her colleague in a situation where she felt it was unsafe. (No evidence was called from Ms Crompton who was unavailable); (xviii) Ms Griffiths understood that the actions of AK were not as a result of anything she had (or not) done but arose from the circumstances of the morning; (xix) On the morning students were being placed in other classrooms in the same manner as for the classes of Ms Griffiths and Ms Crompton. 71 It is not immediately apparent what inference or inferences we are meant to draw from this evidence. Presumably, it is that Mrs Griffiths felt capable of managing the situation and that it was not unsafe. However, this flies in the face of Mrs Griffith's evidence that she did not want to remain in the divided classroom with another aide without a teacher present and that Mr Terry requested Mr McKenzie to stay whilst he attended to JB. It is unlikely that Mr Terry would have requested Mr McKenzie's presence if he considered the situation to be safe. Moreover, an objective assessment of the facts indicates that the environment in the classroom was one of potential danger. 72 As to the defence available under s 53(b), namely, that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision, we have already observed that whilst the external factors such as the strike and the weather contributed to the risk, so did the omission of the appellant in failing to provide additional human resources. Further, the capacity to provide additional human resources was a matter entirely within the appellant's control and, as we have found, not impracticable. 73 The appellant made a specific criticism of his Honour's reference in [156] of the judgment (set out earlier in [65]), in dealing with possible defences, "to closing the school entirely" as being one of the alternative means available to the appellant to reduce or eliminate the relevant risk. For the purpose of the appeal, we are prepared to accept that closing the school may not have been an option available to the appellant. Nevertheless, since that matter was only one of a range of alternatives relied on by the trial judge in his analysis of the situation, we do not consider our approach provides any basis to uphold the appeal.

[70]

88 In our opinion, it is self evident that if Mrs Griffiths had access to a duress alarm or mobile phone the risk to her health and safety would have been significantly reduced. At least from the time of the third assault, after Ms Crompton had left to pursue JB, if Mrs Griffiths had access to a duress alarm or mobile phone she could have called for assistance without having to face the risk of being hit by AK with a chair or make herself vulnerable by turning her back on AK in order to make the call on the wall telephone in the classroom. 89 The circumstances were not dissimilar to those described by Hungerford J in WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 at 9 and 11-12: Importantly, however, it emerged from the evidence that at the time of the incident in question the only telecommunications equipment available in the Karalta group home was a telephone with two handsets, one in the office and another in the kitchen/dining room area; there was no portable phone attached to the telephone system nor did Ms. Cleary have a mobile phone or duress alarm available to her. The limitations of an ordinary telephone system in a situation of a direct threat by a determined and delusional person to another, particularly where only the two of them be present, are obvious. Mr. Cross acknowledged, realistically I think, this aspect which, in terms of the particulars alleged here, constituted the essence of the offence. … I am left in no doubt that the circumstances of the incident which I have endeavoured to describe constituted a most horrific experience for Ms. Cleary and was a direct threat, in the absence of an appropriate emergency procedure to call for assistance, to her safety and welfare in the workplace. The circumstances of the incident, in my view, manifestly speak for themselves in establishing the objective seriousness of the offence which I have earlier characterised as being most serious and to an extreme degree. It would have been all too easy to have provided Ms. Cleary with a duress alarm or mobile telephone with a panic button which would have enabled her, at the time she first became concerned for her safety and went to the bathroom, to call for help without having to rely on the likely unavailable, but certainly impracticable, facility of an ordinary telephone handset which could have been rendered unworkable by the client even if Ms. Cleary could have reached one of the two handsets available. The situation was exacerbated by the fact that Ms. Cleary was alone in the group home with the client and, as it transpired, where the supervisor could not be contacted at the crucial time. I am quite unable to accept Mr. Cross's submission for the defendant that the incident was not reasonably foreseeable because, as he submitted, the client's conduct was unusual and unpredictable in terms of the degree of violence which occurred; the consequent submission that the appropriate penalty was towards the lower end of the range of available penalties was, in my view, not supported by the facts leading to or of the occurrence itself. 90 We also note the circumstances described by Hungerford J in Police Service (No 2) at [37]: 37 Mr Hastings' submission, as set out in more detail earlier, was effectively that there was "no evidence that the radio communication equipment provided to the officers increased the risk to them". I do not agree. It is true, as senior counsel emphasised, that on Senior Constable Addison radioing for assistance the messages were received and acted upon; the position with the portable radio was frustrated, in any event, by Senior Constable Addison himself in leaving the unit in the vehicle. However, I consider the following submission by Mr Crawshaw to be compelling in causally relating the defendant to the risk caused by the alleged inadequate radio communications: Without the means of communication there was no option but to commit. If he sees the opportunity he has to shoot. If he had a portable radio or other means of communication then he may have known that the other cars were close, he could then have kept the subject under observation and remained under cover himself whilst directing the cars to a safe approach with a view to isolating and containing McGowan. Without knowing whether his communication had been received and receiving a response then he had to take the subject on. Communication would have given him more options. I need only add that there was evidence, particularly the lack of two-way dialogue with Kempsey Police Station, from which it may be inferred Senior Constable Addison considered himself to be devoid of communication; his endeavour to use a telephone in a house across the road may well be seen to manifest the isolated position in which he found himself and which caused him to deal with the situation by confronting Mr McGowan.

[77]

98 Further, at [160]-[161] the Vice President stated: 160 In addition to submitting that Mr Petrie's report should have been made available to the school, the prosecutor submitted that the defendant should have obtained relevant information itself through functional assessment: even a preliminary functional assessment would have " identified the intensity of his aggression and violence and permitted steps to be put in place". Apart from the fact that the school had been advised that AK had a history of violence, the evidence of both Mrs Griffiths and Mrs Sparrow demonstrated that, even in his first few days of attendance, AK exhibited a worrying level of violence. Dr Stephenson gave evidence that an initial functional assessment interview with caregivers and teachers should be conducted immediately in the case of a student who exhibited violent behaviour, and that such an assessment could be usefully carried out before enrolment to identify aggressive behaviour. Again, one would expect that such an interview with caregivers in this case would have disclosed Mr Petrie's report. 161 The defendant did not dispute that the evidence established these failures, and indeed conceded that, on the subject of any potential defence, it did not suggest that it was impracticable or beyond its control to provide information of the kind described in the charge. Rather, the defendant resisted the charge on the basis of its general submissions as to liability: firstly, in relation to the elimination of the entire risk (in relation to this charge, pointing out that Mrs Griffiths was also assaulted by SH, who was well known to her, and asserting that the provision of information could not guarantee that AK did not become violent) and secondly, causation. 99 Having earlier dismissed the appellant's submissions in relation to the elimination of the entire risk, Walton J addressed the issue of causation. In this respect at [163]-[164] his Honour stated: 163 The first two particulars relate to the failure to equip the staff with adequate information concerning AK. I am satisfied beyond reasonable doubt that if the defendant had not failed in these respects, the staff at Kurrumbee (sic) dealing with AK would have been privy to Mr Petrie's report from the beginning of the school term. I do not believe that one can understate the importance of providing staff responsible for supervising a dangerously violent student with a report on that student's violence specifically commissioned by the defendant for the purpose of ensuring staff and community safety in another environment. The author's evidence that it was more likely than not that the triggers recorded in the report would have made AK violent in any environment only emphasise the significance of the defendant's failure. Dr Stephenson gave evidence that ignorance of violent potential and the triggers for such violence leads to a greater risk of being a victim of that violence and that it would be highly undesirable to leave a person in charge of a class who had no background knowledge in how to deal with or avoid triggering aggressive behaviour by a student. Yet this is exactly what the defendant did.

[81]

In particular, they would have noted the report's summary points: staff should maintain a safe distance if AK begins to get upset (minimum of two metres) and to be aware of all available exits (presumably to facilitate escape in critical situations); expect aggressive or violent behaviour at any time; provide him with many opportunities to communicate his needs when he is upset; and never engage him in a physical manner. 100 Referring to the appellant's submission at first instance that the School was already aware of AK's violence through observation (and, therefore, the report would not have made any difference), his Honour stated at [165]: Although Mrs Griffiths may have been factually aware of a violent propensity, she was ignorant of its severity, triggers, and (perhaps most importantly) appropriate responses and responses which would invite aggression and must be avoided. Dr Stephenson's evidence clearly established the idiosyncrasy of each student and the corresponding importance of individual assessment and management. Sensitivity to individual behavioural patterns is relevant to the risk, risk assessment and risk management of severely intellectually disabled students with aggressive tendencies. Similarly, Mr Terry was unaware of the serious nature of leaving an aide alone with AK, given the severity of his violence and the demanding nature of the management required to control his aggression. It was the defendant's obligation under the Act to ensure the provision of the appropriate information as to those risks was conveyed to teaching and teachers' aide staff: see WorkCover Authority of NSW (Insp Glass) v Kellogg at 257 - 258 and WorkCover Authority of NSW (Inspector Bernard) v Rail Infrastructure Corporation (2001) 109 IR 209 at [110]. 101 At [166] the Vice President concluded that he was satisfied beyond reasonable doubt that the defendant's failure to provide adequate information as charged caused the detriment to Mrs Griffiths' safety (exposing her to the risk of assault by AK on 9 February 1999 in circumstances where AK was not only wielding a chair, but was also preventing her escape). His Honour added: 166 In addition to the clear evidence of Mr Terry and Mrs Griffiths of the actions they would have taken with knowledge of Mr Petrie's report, it is clear that the report would have given them more options to prevent or reduce the risk of assault by AK. The most obvious example is the direction not to turn one's back on AK, the very act on the part of Mrs Griffiths which preceded the assault. 102 The central issue here is whether the appellant's failure to provide information regarding AK's behavioural problems and the failure to follow the procedure for enrolment in relation to AK was causally connected to the risk to Mrs Griffiths' health and safety on 9 February 1999. The information referred to was essentially the Petrie Report, written by Philip Petrie, Disability Consultant, and entitled "Interim Reactive Strategy Plan". The client referred to in the Report was AK. At [36]-[39] of his first judgment Walton J observed: 36 A consultant to DoCS, Mr Petrie, had prepared a detailed report entitled "Interim Reactive Strategy Report" listing strategies for use in AK's residence and in the community to ensure the safety of AK, staff, other residents and the general public during AK's periods of aggression. At the time of writing the report, Mr Petrie, formerly a clinical nurse with experience in behaviour management, ran training courses and workshops for governments and private organisations focussing on people with disabilities.

[84]

39 Mr Petrie listed a broad range of triggers for AK's aggression (not doing what he wanted to do; being told to do something he did not want to do; not being understood; boredom; and being physically "restrained" (for example, by having a hand placed upon his shoulder)) and concluded with a warning to expect aggressive behaviour at any time. Mr Petrie stressed that only people who knew AK well and were confident and competent in managing his behaviour should be left alone with him. Mr Petrie advised carers, in the event of threatening behaviour, to maintain a distance of at least two metres and to be aware of all available exits and stated that, if alone in the residence with AK, they should not undertake activities which may pose a problem should they need to leave the house (such as bathing other residents or cooking). Such activities should only be undertaken when two supervisors were present. Staff were exhorted to follow the guidelines closely, at all times, in the interests of safety and there was provision for staff to sign and date a copy of the report to confirm that they had read and understood it. 103 There was a good deal of argument about whether the Department of Community Services had the Petrie Report at the relevant time and whether the appellant had access to the Report, which would have forewarned the staff at the School of the extent of AK's behavioural problems and his capacity to be aggressive and to resort to violent behaviour. But as the Vice President noted at [161] of his judgment: The defendant did not dispute that the evidence established these failures [failures 6(a) and 6(b) in the charge], and indeed conceded that, on the subject of any potential defence, it did not suggest that it was impracticable or beyond its control to provide information of the kind described in the charge. 104 The appellant's failures are, therefore, made out beyond reasonable doubt and the only issue is whether the failures were causative of the risk pleaded. In any event, in our opinion, it was open to Walton J to find that DoCS had the Report at the relevant time. The Report was written for DoCS, was dated 12 January 1999 and approved by AK's mother on 28 January 1999. Mr Petrie stated in his evidence that he provided the Report to DoCS and that it was fairly standard practice to give DoCS a copy each time a new document was developed or any changes were made. In cross-examination, Mr Petrie said that he had provided a copy of the Report to Marco Pasher, AK's nominated House Manager at the Group Home in which AK resided. The Group Home was part of DoCS. Even if the Report had not been provided to DoCS until after 28 January 1999, when AK's mother gave her approval to the plan in the Report and when she came to the School to complete enrolment forms, is no reason to suggest DoCS did not have the Report at the relevant time. Contrary to what the appellant submitted, that the School did not have the Report before or at the time AK was enrolled and that fact formed part of his Honour's factual findings that this was a causative factor in the risk of assault on 9 February 1999, on a proper reading of his judgment his Honour was only concerned that the School did not have access to the Report prior to 9 February 1999. 105 The overwhelming inference is that prior to 9 February 1999, DoCS possessed a valuable, detailed report (Mr Petrie's report) on AK's propensity for violence and risk minimisation strategies, commissioned specifically for the purpose of promoting the safety of people who came into contact with AK: see judgment at [159]. 106 Notwithstanding the existence of the Petrie Report and DoCS's possession of it, the appellant submitted that there was no evidence for his Honour to conclude that had the enrolment procedure been followed that it was 'probable' that the Petrie Report would have been provided to the school. We disagree. As Walton J commented at [159] of his judgment, " …at the very least, the enrolment procedure would have established a formal channel of communication between AK's carers and the school" and it is almost certain the Report would have been brought to Mr Terry's attention. 107 Further, Mr Terry explained the appellant organised AK's enrolment at the District Office level and not according to the procedure laid down in the appellant's policy document regarding enrolment that provided: Enrolment of Students with Special Learning Needs Students with Disabilities In each case, when a student with a disability presents for enrolment, it is the responsibility of the principal to ensure that an appraisal of the student's educational needs is carried out. For some students, appraisal will have occurred as part of a planned transition process. For others, the appraisal will take place at the time enrolment is sought. Appraisals will involve parents or caregivers and will entail consideration of the student's support needs in areas such as curriculum, mobility, social skills, personal care and communication. It will often involve consideration of supporting documentation from medical practitioners and other health and education professionals. District special education consultants are available to assist in this process, in particular, to identify the resources which may be available to support the enrolment. Requests for enrolment in special classes or special schools are considered by a district placement panel. The Special Education Handbook for Schools contains descriptions of services available, eligibility criteria for access to services and procedures to be adopted in enrolling students with disabilities. 108 It was also submitted for the appellant that the failure to provide information such as that contained in the Petrie Report and the failure to follow the enrolment procedure had no causal connection to the risk that arose on 9 February 1999. 109 The respondent submitted neither the staff at Kurrambee School nor the Principal had adequate knowledge of AK's previous behaviour to make adequate arrangements to attempt to manage him effectively. The extent of AK's behavioural problems was an unknown quantity. No information was provided by or obtained from the DoCS group home about AK except for some verbal information provided by the carers who were driving AK to and from school. Unlike the situation mid-way through 1998 for another student received from the Hall for Children, there was not a transition program involving DoCS. This transition program included an employee of DoCs spending time with school staff, informing them of this student's behaviours and the strategies to manage that behaviour, to facilitate the transition of AK from the Hall for Children to Kurrambee: see [34] of his Honour's judgment. 110 The respondent also submitted that Dr Stephenson gave evidence that for somebody like AK if you knew when he came in to the School that he exhibited challenging behaviour, you would work on an initial interview straight away. You would want to speak to the "care givers" and the teacher who handled the child. You gather information about the student by indirect means, by talking to people who have experience with the student. Most students coming from another school have their program assessment material forwarded on. The Interim Reactive Strategy Plan falls within the type of records or other material coming to the school with the student. 111 We note the evidence of both Mr Terry and Mrs Griffiths of the different actions they would have taken, which may well have averted the assault, had they known of the Report's contents. Mr Terry would have decided that AK's presence was untenable and would have acted accordingly, and Mrs Griffiths would have called for assistance before Mrs Crompton left. Mrs Griffiths was ignorant of the severity of AK's violence, its triggers and appropriate responses and those responses that would invite aggression and must be avoided. 112 It was submitted for the appellant that the Petrie Report did not cover the unusual circumstances that existed on 9 February 1999 that created a number of triggers for student behaviour. It was contended the triggers referred to in the Report may not have been relevant on the day to AK's behaviour; it was not known with any certainty what triggers cause a student to behave in an aggressive and/or violent manner. On the other hand, however: (i) Mr Petrie said in his evidence no matter what environment AK was in, those triggers in the Interim Reactive Strategy Plan would highly likely, more likely than not, cause AK's behaviours to occur; (ii) Dr Stephenson gave evidence that if a person working at a special school does not know that a student has potential to be violent and does not know what will trigger such behaviour that employee has a greater risk of being a victim of that aggression than if they did know. It would be highly undesirable to leave a person in charge of a class who had no background or training to cope with students who exhibited challenging or violent behaviour, or who had no specific knowledge in how to deal with or avoid triggering aggressive behaviour by a student. A person should only be left alone in a classroom with potentially difficult students if that person has experience and training to deal with such students and their behaviour. 113 The appellant submitted that: (i) The Respondent's argument that the failure of the Appellant to provide information on AK prior to his attendance at the school was a causative factor for the alleged risk falls away when one considers the evidence in relation to students SH and JB. For both SH and JB the school, the principal, teacher's and teacher's aides had the benefit of reports relating to both of the students. This however, did not have the effect of controlling the risk presented from the disabilities of the students. See incident on 8 March 1999 with JB. ii) There was, albeit informal, information from the head office to Mr Terry about AK's behaviour. Mr Terry and Ms Griffiths were aware of the behaviour of other children who had previously attended the Hall of Children before Kurrambee. It is not the case that AK arrived at the school and there was no information provided as to his behaviour. (iii) There is an inherent difficulty in implementing the recommendation that only staff who know AK well should be left alone with him. That difficulty is that AK was new to the school and it was not possible for the staff to know him well at that stage. Although Ms Griffiths may not have been given specific strategies for dealing with AK, she was experienced with the strategies used towards other students who demonstrated aggressive or challenging behaviour such as SH and JB. Ms Griffiths was aware of the fact that AK could be violent, but not the extent of his actions. Ms Griffiths also agreed that the circumstances on 9 February were very disruptive for the students. 114 On the other hand, the respondent referred to the following evidence: (i) Prior to 9 February 1999, AK had: been disruptive; aggressive; and, kicked Mrs Griffiths but not to the extent of the kicks on 9 February 1999.

[88]

We refer also to the Vice President's findings, with which we agree, at [164]-[165] of his judgment. 118 We consider it was proven beyond reasonable doubt that if adequate information had been provided to the School in a timely fashion regarding AK's behavioural problems or details of any strategies which could have assisted the School staff to manage or control AK's behaviour, the staff would have been in a position to adopt measures that would either have eliminated the risk of assault by AK on 9 February 1999 or significantly reduced the risk of assault. 119 As to the failure to follow the procedure for enrolment in relation to AK, we consider the critical consideration is that if the procedure had been followed it would have either brought to light the Petrie Report or an earlier draft of the Report or some other information that would have revealed the extent of AK's behavioural problems or at least alerted Mr Terry to the need to make further inquiries. It is pertinent to note the evidence about what occurred the previous year when the School received a student from the Hall of Children and a case worker from DoCS visited Kurrambee several times and informed the staff of the student's needs, behaviour and strategies to manage that behaviour. Further, as Walton J noted at [42]: 42 Mr Terry gave evidence (uncontradicted by the defendant) that the defendant's policy for enrolling disabled students was not followed in AK's case. Had it been followed, Mr Terry stated that the request for enrolment would have been considered by a multi-disciplinary panel by reference to an appraisal report and an access request form. If enrolment was offered, copies of these documents would have been sent to Kurrumbee at the same time the offer was sent to the parents. Parents would then contact the school to commence enrolment procedures. In consequence, Mr Terry would have known more about AK's behaviour, which he would have shared with his staff. As it was, he had no real information and was unable to make adequate arrangements to attempt to manage AK effectively. 120 It was open to Walton J to accept the evidence of Mr Terry where he said: In my opinion, if the [enrolment] procedures had been followed, my knowledge of [AK's] behaviour at the time of his enrolment would have been more extensive. I would have made all reports available to relevant staff.

The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan

At a glance

Court

Decision date

Before

Source

Judgment (96 paragraphs)

Parties

Cases Cited (20)

Cited By (16)