WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of NSW - [2002] NSWIRComm 259 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of NSW

[2002] NSWIRComm 259

Industrial Relations Commission (NSW)|2002-10-10|Before: Staunton J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-10-10

Before

Staunton J

Source

Original judgment source is linked above.

Judgment (105 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) [2002] NSWIRComm 259 PROSECUTOR: Inspector Fiona Stewart PARTIES : DEFENDANT: The Crown in Right of the State of New South Wales, Department of Education and Training, Department of Juvenile Justice, Technical And Further Education Commission. FILE NUMBER: 3466 of 2001 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - stabbing injury - foreseeability - risk known and foreseen - statutory obligations - competing interests - best interests of employees - specific deterrence - costs - penalty imposed Children's (Detention Centres) Act 1987 s 4 s 14 LEGISLATION CITED : Children (Detention Centres) Regulation 2000 s 16 Mental Health Act Occupational Health and Safety Act 1983 s 15 s 48 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 CASES CITED : Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44 HEARING DATES: 09/10/2002 DATE OF JUDGMENT: 10/10/2002

[11]

6 The particulars of the charge were expressed in the following terms: (a) At all material times the defendant (Department of Juvenile Justice) operated the Yasmar Juvenile Justice Detention Centre, Parramatta Road, Haberfield in the State of New South Wales ("Yasmar"). (b) At all material times Yasmar provided custodial services, including educational services, to female detainees aged between 10 and 18 years who were in custody charged with or convicted of criminal offences. (c) At all material times detainees including DA were in the custody of the Superintendent of Yasmar. (d) At all material times the defendant (Department of Education and Training) operated the Sunning Hill School for Specific purposes located within the confines of Yasmar Juvenile Justice Detention Centre and which provided education services to student-detainees in the custody of the Superintendent of Yasmar. (e) At all material times, pursuant to a joint scheme between the Department of Education and Training and the New South Wales Technical and Further Education Commission, the New South Wales Technical and Further Education Commission delivered vocational courses, and in particular a cooking or hospitality course, to student-detainees including detainee DA in a classroom at the Sunning Hill School and provided teaching staff and course equipment for this purpose. (f) At all material times the defendant employed Karen Horsley as a Teachers Aide who, in the exercise of her duties as a staff member of the Department of Education and Training, was present in a classroom of the Sunning Hill School whilst the cooking or hospitality course was delivered to student-detainees including DA. (g) At all material times the defendant employed Scott Bremner as a Food School Assistant and Mandy Holmes as a Teacher who, in the exercise of their duties as staff members of the New South Wales Technical and Further Education Commission, were delivering the said cooking or hospitality course to student-detainees including DA in a classroom of the Sunning Hill School. (h) At approximately 11:00am on 23 July 1999 Schott Bremner was assisting in the delivery of the cooking or hospitality course in a classroom of the Sunning Hill School, when he was stabbed in the back by student-detainee DA with a cooking knife used by students participating in the said course, occasioning his death. (i) At all material times there was a potential risk to the health, safety and welfare of the employees in that there was a risk of the employees being assaulted by student-detainee DA who had demonstrated aggressive and/or violent behaviour and had access to dangerous implements such as knives and thereby suffering physical and mental harm. (j) The defendant's failures and/or omissions were the following: (i) Failing to assess or adequately assess the selection and suitability of student-detainee DA to participate in a course involving access to and the use of cooking knives. (ii) Failing to prevent student-detainee DA from participating in a course that involved her having access to and the use of knives. (iii) Failing to adequately inform employees of matters relating to the behavioural problems of student-detainee DA participating in a course involving access to and the use of cooking knives. (iv) Failing to access or adequately assess the suitability of delivering a course to student-detainee DA that involved access to and use of cooking knives. (k) As a result of the said failures and/or omissions there was a risk to the health, safety and welfare of the said employees.

[17]

At all material times the Department of Education and Training operated the Sunning Hill School for Specific Purposes located within the confines of Yasmar Juvenile Justice Detention Centre and which provided education services to student-detainees at Yasmar. There were at the relevant time, ten such schools operated by the Department of Education and Training within the Department of Juvenile Justice detention centres and they are referred to as "Schools for Specific Purposes" given the nature of the student population and custodial environment in which they operate. The operation and activities of these schools is pursuant to arrangements made in 1980 when the then Department of School Education took over this responsibility from the Department of Youth and Community Services ("YACS"), the predecessor of the Department of Juvenile Justice. A document referred to as the "Assumption of Responsibilities" 1980 indicated that the responsibility for the operation of the school as regards courses funding and teaching staff lay with the then Department of School Education (now the Department of Education and Training). 8. As of 23 July 1999 there were about twelve staff employed as staff members of the Department of Education and Training at the school. The principal was Marcia Vallance with Adam Hughes as the Acting Assistant Principal. Also employed at the school was Karen Horsley a Teachers Aid Special. She had finished her BA degree and was completing her Diploma of Education. 9. Pursuant to a joint scheme between the Department of Education and Training and the New South Wales Technical and Further Education Commission, the New South Wales Technical and Further Education Commission delivered vocational courses, and in particular a cooking or hospitality course, to student-detainees including detainee DA in a classroom at the Sunning Hill School and provided teaching staff and course equipment for this purpose. 10. At all material times the defendant employed Scott Bremner as a Food School Assistant and Mandy Holmes as a Teacher who, in exercise of their duties as staff members of the New South Wales Technical and Further Education Commission, were delivering the said cooking or hospitality course to student-detainees including DA in a classroom of the Sunning Hill School. 11. Bremner commenced employment with the Technical and Further Education Commission on 20 April 1998. The course is part of the vocational education curriculum developed and administered by the Technical and Further Education Commission. Bremner had assisted in the teaching of the course in 1998 but Holmes was not the teacher. On these occasions the teacher was Ellen Argyriou. The Hospitality Certificate was a vocational Technical and Further Education Commission course. The delivery of such courses was pursuant to a joint arrangement between the Department of Education and Training and the Technical and Further Education Commission that provided for the teaching of the Technical and Further Education Commission vocational courses to year 11 and 12 students within secondary schools. These courses were referred to as Joint Secondary School TAFE courses ("JSST"). The Department of Education and Training and the Technical and Further Education Commission had developed a set of guidelines for the delivery of these courses. These courses are of particular benefit to non academically able students. The guidelines provided that "the Program offers secondary school students the opportunity to undertake mainstream TAFE subjects and major award courses as part of their regular school study program." 12. The Department of Education and Training and the Technical and Further Education Commission district liaison officers were responsible for co-ordinating and arranging the delivery of Technical and Further Education Commission vocational courses within secondary schools. The Sydney Institute of the Technical and Further Education Commission had delivered JSST courses to the Sunning Hill School since June 1997 usually involving one course per term. The Sunning Hill School comes within the district covered by the Sydney Institute located at Ultimo. In the delivery of such courses at the school the Technical and Further Education Commission relied upon the Department of Education and Training to ensure that systems were adequate and there were no risks to staff from the students or the custodial environment. 13. At approximately 11.00am on 23 July 1999 Scott Bremner was assisting in the teaching of the cooking or hospitality course in a classroom of the Sunning Hill School, when he was stabbed in the back by student-detainee DA with a cooking knife used by students participating in the said course occasioning his death. Prior to the commencement of the cooking class on 23 July 1999 DA and Bremner had not met or had any other form of contact. 14. At the time of the stabbing the students participating in the course were being instructed by Holmes on techniques in knife cutting and sharpening as well as food preparation and cutting. 15. On the morning of the fatal stabbing Bremner was performing duties in assisting in the teaching of what is varyingly described as a hospitality or cooking course to student-detainees resident at the Yasmar Juvenile Justice Centre ("Yasmar"). The teacher of the course was Holmes. It was the first day of the course for this group of students but the course had been taught to detainees in 1997 and 1998 though the content of the course had undergone some modifications over that time. While it was the first occasion Holmes had taught the course at Yasmar, Bremner had previously assisted with the teaching of the course in 1998. 16. In addition to Holmes and Bremner there were six detainee/students in the class including DA. A teacher's aide Special, Karen Horsley ("Horsley"), was also present in the classroom. Horsley would not normally be present in the classroom but had been assigned to that class to assist with any behavioural issues arising with respect to DA. She knew DA. It was not intended that she provide a physical response to violent acts such as that carried out by DA. She had a two way radio in the classroom and it was part of her role to call a DJJ staff member to attend and remove a student if necessary. She was also there to keep DA on task and assist in the implementation of DA's Individual Education Plan. She had been employed at Sunning Hill since October 1997, had a Bachelor of Arts and was completing a Diploma of Education at the time. She had adequate qualifications and experience to carry out a monitoring role. Any need for a physical response was to be provided by DJJ staff who were in close proximity outside the class room and contactable by two way radio. 17. The "classroom" was the home economics room located on that part of the Yasmar centre known as "Ramsay" which was one of the residential units for detainees at Yasmar. At Yasmar there are two distinct residential locations referred to as the Dobroyde and Ramsay sites. Each area is fenced and is referred to as a key control area. Detainees however are required to move between each of these units for various operational reasons. Sunning Hill is similarly split having one unit located on each of the Ramsay and Dobroyde sites. The Ramsay site is physically connected to the residential detention centre complex whereas the unit on the Dobroyde site is a stand-alone structure separated from its like named main residential unit.

[20]

At approximately 10.30 am Holmes asked the students whether they wished to have a break. At this point Adam Hughes, Assistant Principal of Sunning Hill, entered the classroom. On their return DA approached Adam Hughes. She said to him "stab you" and she pushed her hand into his stomach. The gesture was not seen to be aggressive by Hughes and his response was to engage in a polite conversation regarding how she was progressing in the course. The earlier statement was isolated and was not the subject of further discussion between them. 21. During the recess break Holmes and Bremner proceeded to set up the cutting boards and steel knives on the students' workbenches in preparation for the next part of the course. There was a procedure in place regarding the use of implements such as knives. They were counted out and counted back in. This was carried out for the course. If there was a missing item Juvenile Justice Staff would be radioed and they would attend and conduct a search including a pat down search. 22. At approximately 11.00 am the students returned to the classroom and were positioned around the centre workbenches. Holmes began to instruct the students on the techniques in knife handling and sharpening as well as food preparation and cutting. Whilst the students were engaged in this practical exercise DA moved from the bench at which she was working beside Horsley, walked past and behind Holmes, behind Bremner and plunged a large chef's knife into the right side of his back. Holmes recognised the knife as one of the TAFE cooks knives out of the toolbox provided to students for the course. 23. Bremner stumbled towards Holmes and she assisted him to a chair. Horsley used her "Motorola" two-way radio to call for assistance. A senior youth worker arrived followed almost immediately thereafter by a nurse who administered first aid until an ambulance arrived. Bremner was taken by ambulance to Royal Prince Alfred Hospital but died at approximately 5.05 pm of blood loss due to extensive internal injuries resulting from the stabbing. 24. Pursuant to Sections 4 and 14 of the Children's (Detention Centres) Act 1987 the Director General of the Department of Juvenile Justice must ensure that programs are delivered which focus on student success within the Centre and school and lead to community based options that facilitate each student's successful re-integration into society. In particular Section 14 provides inter alia that:- The Director-General shall ensure that adequate arrangements exist: (a) to maintain the physical, psychological and emotional well-being of detainees (b) to promote the social, cultural and educational development of detainees 25. Part of the consultative machinery involved in the running of Yasmar was what is referred to as the Local Education and Training Co-Ordination Committee ("the LEATC"). The LEATC was established to facilitate the delivery of student programs at Yasmar. This committee had representatives from the Department of Juvenile Justice ("Yasmar"), the Department of Education and Training ("Sunning Hill"), and the Technical and Further Education Commission via the Sydney Institute. Its chairperson as of 23 July 1999 was Marcia Vallance, the principal of Sunning Hill. 26. The terms of reference for the Yasmar LEATC as of 23 July 1999 confirmed the joint nature of the membership of the committee. The terms, in part, provide as follows: · To provide overall direction and management of education and training for young people in custody; · To increase access to TAFE and other accredited Vocational Education and Training (VET ) positions; · To ensure operational and security considerations are identified and addressed in the provision of education and training programs; · To ensure that each young person in custody has an Individual Education and Training Program (IETP) that meets their identified needs and that is part of their overall case management plan; · To develop an education and training component to each young person's release/exit plan in consultation with relevant Juvenile Justice Officers. 27. The terms of reference provided one of the forums by which the various agencies had input into the running of the Sunning Hill School and were made aware of matters directly impacting upon their operational and administrative obligations. In particular was the joint responsibility between the agencies with regard to the assessment of "security considerations" for the "provision of education and training programs".

[74]

36 Without elaborating in detail as to those specific measures incorporated in the above summary as related by Mr Green, some of the steps taken by the three agencies as part of the review process were as follows: (i) working parties comprised of the Department of Education and Training, Department of Juvenile Justice and, where appropriate, Technical And Further Education Commission personnel were established to examine the four areas of the terms of reference and develop key recommendations. (ii) a Juvenile Justice Reference Group was established as part of the consultative process. That reference group included representatives from the Technical And Further Education Commission, the NSW Teachers Federation, the Public Service Association, the Department of Education and Training Occupational Health and Safety Unit, Community Care School Principals and the Department of Juvenile Justice. (iii) recommendations in relation to the development of a profile for practical and vocational courses were implemented. All such programs are now approved by the Local Education and Training Co-ordination Committee (LEATCC) prior to any such courses being conducted. The LEATCC now also makes recommendations on the level of risk of education and training programs. Programs are grouped according to risk in general (low risk), extended (medium), and specific (high risk) categories. Students must progress through each category to demonstrate their behaviour is appropriate for entry into the higher risk categories. (iv) individual detainee risk assessments have been developed for use by the Centre Support Team (CST) to consider the level of risk of the detainee. Prior to the commencement of courses, all detainees undergo an induction and assessment. Information from the induction and assessment helps in the development of individual detainee risk assessment. (v) the development of a program participation risk assessment to assist in the selection of detainees for placement in school and TAFE programs. A behaviour management plan for that student forms part of the attachment and that assessment is updated each week. (vi) the development of "Sunning Hill School's Detainee Program Participation System Overview" sets out how the decision to place a detainee in a program is arrived at. (vii) details of program placements and any conditions of approval for each program are now recorded in the CST minutes. Those minutes are now distributed to the school, the centre manager, and team leader at the accommodation units of the centre. Those minutes together with the school CST representative's notes of the CST meeting and the program participation risk assessment are used to compile a daily roll identifying program placement for each detainee. The daily roll is distributed to the teachers. (viii) steps were taken to support principal's of all community care schools in their implementation of recommendations arising from the Inter-Departmental Review, specifically regarding risk management processes. In addition, relief days have been provided to each school to facilitate release of staff to participate in development and implementation of improved risk assessment strategies and processes. (ix) handover procedures are now in place at Sunning Hill school that are particularly relevant to assist employees regarding potential behaviour problems of detainees. A handover of information takes place at the commencement and completion of each school day. A briefing takes place for school staff each morning before the classes. Staff are kept informed of relevant information regarding detainee behaviour in the accommodation unit since the previous school day. That information is then conveyed to staff at the briefing. A handover to Department of Juvenile Justice staff also occurs at the end of the school day. (x) information from the Allied Health file of a detainee is provided verbally at the CST meeting and relevant information is recorded on the program participation risk assessment. Changes have been made in the development of a staff induction program by the Department of Juvenile Justice and the Department of Education and Training. This is done through a jointly developed policy titled "Induction Framework for Juvenile Justice Centres and Education and Training units". The induction includes a section on security delivered by a Department of Juvenile Justice staff member. (xi) a Memorandum of Understanding has been signed between the Department of Juvenile Justice and the Department of Education and Training which clearly articulates each Departments responsibilities for security and safety of staff and young people in juvenile justice centres. That Memorandum of Understanding is a key document that provides the basis for cooperation between the two Departments in the delivery of educational programs for young people in detention. It includes a statement on the responsibilities of the Department of Juvenile Justice for security strategies, and a statement that education and training units (schools) are responsible for supervising and managing detainee behaviour during the delivery of Department of Education and Training programs and for communicating security and safety concerns to Juvenile Justice staff. That MOU also identifies: * the joint responsibility of the departments for the implementation of behaviour management practices * the responsibility for the provision of communication equipment and systems including handover procedures * procedures for the resolution of disputes between the two departments * the joint development of a behaviour management protocol across each juvenile justice centre and the attached schools * the formation of a joint occupational health and safety committee for each site including employee and employer representatives from the Department of Juvenile Justice and the Department of Education and Training. Joint occupational health and safety committees have been established in all centres and schools. The Department of Education and Training has trained staff to be workplace committee representatives in accordance with its legislative responsibilities * procedures have been developed as part of the program risk assessment to place a Department of Juvenile Justice staff member in a classroom where that is deemed an appropriate measure in the program risk assessment. All staff in a classroom have a radio and personal alarm and steps have been taken to strengthen security procedures in place at Sunning Hill school.