Industrial Relations Commission of New South Wales CITATION: Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 PROSECUTOR: John Joseph Cahill PARTIES: DEFENDANT: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) FILE NUMBER(S): IRC 1390; IRC 1391; IRC 1392 of 2006 CORAM: Schmidt J Occupational Health and Safety - prosecutions under section 8(1) of the Occupational Health and Safety Act 2000 - Department of Education and Training - School in Juvenile Justice Centre - what systems were established to ensure safety - what were the defendant's safety systems directed at - what were the practical systems in operation - was there ongoing staff discontent as to safety matters - what was the statutory scheme which operated and how did that legislation interact with the obligations imposed on the defendant by the Occupational Health and Safety Act - psychological injury at work - what is 'occupational stress' and 'social support' - expert evidence - whether staff suffered any psychological injury - what is the relevant applicable law so far as psychological injury is concerned Occupational Health and Safety - events of 10 March 2004 - system failures - causal connection between the defendant's acts and omissions and the materialisation of this risk - particulars of the 10 March charge established CATCHWORDS: Occupational Health and Safety - events of 15 March 2004 - what risks were staff exposed to - Whether the School Rule system was a cause of violent or aggressive behaviour - were there any bases for safety concerns - causal connection - particulars of the 15 March charge established Occupational Health and Safety - events of 10 - 17 March 2004 - Social support charge - Were the events of 10 and 17 March relevant to this charge? - Did the exposure to the risk occur at work? - the allegation that the place of work was psychologically unsafe - the absence of social support producing a psychological injury - Cumulative trivial stress - Vocational concerns - the Defendant's systems - Risk Assessment and Risk Control - the causal connection between the defendant's acts and omissions and the materialisation of the risk - what was the expert evidence as to social support - inadequate management support - was it necessary for the prosecution to establish that symptoms of psychological injury, or a known susceptibility to such injury, before it was sustained, in order to make out the charge? - the approach that safety was a matter for the Department of Juvenile Justice to ensure - particulars of the 10 - 17 March charge established Defences - the proper construction of s 28(a) of the Occupational Health and Safety Act - the concept of reasonable foreseeability - how does the statutory defence operate, especially in the context of a charge relating to a psychological injury - the defence in the case of the 10 March charge - the defence in the case of the 15 March charge - the defence in the case of the 15 - 17 March charge - defences not established Children (Detention Centres) Act 1987 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Workers Compensation Act 1987 Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Chapman v Hearse (1961) 106 CLR 112 Daly Smith Corporation (Aust) Pty Limited v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 Drake Personnel Pty Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority v Caltex Refining Co Pty Ltd (1992) 178 CLR 477 Johnson v State of NSW (Department of Education and Training) [2006] NSWIRComm 109 Genner Constructions Pty Limited v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Morgan and Anor v Tame (2000) 49 NSWLR 21 Newcastle Wallsend Coal Company Pty Limited & Ors v McMartin (2006]) 159 IR 121 The Crown in Right of State of New South Wales (Department Of Education And Training) v O'Sullivan (2005) 143 IR 57 Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 CASES CITED: New South Wales v Fahy (2007) 232 CLR 486 R v Janceski (2005) 64 NSWLR 10 St Hilliers Contracting v WorkCover Authority (NSW) (2007) 162 IR 241 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 State of New South Wales v Mannall [2005] NSWCA 367 State Rail Authority (NSW) v Dawson (1990) 37 IR 110 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady [2003] NSWIRComm 219 Tame v New South Wales (2002) 211 CLR 317 New South Wales (NSW Police) v Inspector Paul Covi [2005] NSWIRComm 303 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 Workcover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure (T/as Australian Inland Energy and Water) (2003) 128 IR 257 WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245 WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority (NSW) (Inspector Stewart) v Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 HEARING DATES: 16 April 2007, 17 April 2007, 19 April 2007, 20 April 2007, 7 May 2007, 8 May 2007, 10 May 2007, 11 May 2007, 14 May 2007, 15 May 2007. 16 May 2007, 21 May 2007, 22 May 2007, 28 May 2007, 5 June 2007, 6 June 2007, 7 June 2007, 8 June 2007, 2 August 2007, 3 December 2007, 4 December 2007, 5 December 2007, 6 December 2007, 7 December 2007, 10 December 2007, 11 December 2007, 12 December 2007, 13 December 2007, 14 December 2007, 26 March 2008, 27 March 2008, 7 April 2008, 8 April 2008, 9 April 2008, 10 April 2008, 17 April 2008, 18 April 2008, 13 May 2008, 14 May 2008, 7 August 2008, 8 August 2008 DATE OF JUDGMENT: 19 December 2008 PROSECUTOR: Mr B Docking of counsel SOLICITORS: WG McNally Jones Staff LEGAL REPRESENTATIVES: DEFENDANT: Mr J Phillips SC with Mrs W Thompson of counsel SOLICITORS: Crown Solicitor's Office JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 19 December 2008 Matter No IRC 1390 of 2006 JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND DEPARTMENT OF JUVENILE JUSTICE) Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1391 of 2006 JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND DEPARTMENT OF JUVENILE JUSTICE) Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1392 of 2006 JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT (No 2) [2007] NSWIRComm 246 1 For safety reasons, staff employed at Cobham Juvenile Justice Detention Centre ('Cobham') and Putland Education and Training Unit ('Putland') are referred to at work only by their first names. I have observed that practice in this judgment, having regard to the obligations imposed upon the defendant by the Occupational Health and Safety Act 2000 ('the OHS Act'), in relation to ensuring the safety of its employees. 2 In March 2004, two teachers aides special ('TAS'), TAS Mary and TAS Su, were employed at Putland, a school conducted by the defendant, which is located inside Cobham. On 10 March, TAS Mary was involved in an incident in class, where she was working with a class teacher, Ron, and a number of detainees. When personal duress alarms were activated to call for assistance, there was no response and the two staff members were left to deal alone with the detainee threatening them. That detainee left, but was able to return to the classroom, in the company of another detainee, to make further threats. Still no assistance was provided. 3 On 15 March, TAS Mary was again working in class with teacher Ron, when another detainee threw a chair at him, while trashing the library in which the class was taking place. This detainee was restrained by several juvenile justice officers, who removed him from the class. The detainee was later charged with assault and transferred from the Centre. TAS Su observed some part of these events. On 17 March, a fight broke out between two detainees in a classroom in which TAS Su was working that day. Those detainees were dealt with by juvenile justice staff, when assistance was called. 4 Teacher Ron, TAS Mary and TAS Su each took sick leave and were later diagnosed and treated for psychological injuries, accepted by the defendant, after investigation, as having been sustained as the result of their experiences at work. 5 Three charges were subsequently brought against the defendant by Mr John Cahill, the Secretary of the Public Service Association of New South Wales ('the PSA'), for breach of s 8(1) of the OHS Act. Each charge was defended. 6 It was the prosecutor's case that each of the charges would be established by the proof of one, or more, of the particulars provided. The defendant denied that any of the alleged offences had been committed and claimed that, even if proven, it would establish statutory defences in respect of each charge. The charges brought 7 The three charges, as varied at the hearing without objection, were: Matter Number IRC 1390 of 2006 On 15 March 2004 at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training) whose address is 35 Bridge Street, Sydney and 477 Pitt Street, Sydney in the State of NSW being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary and TAS Su, in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. The further particulars of the charge are: a) There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer. b) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent detainee BH from being in the class. ii) Failing to have a Juvenile Justice Officer present in the class room to support and monitor students, classes and program delivery staff. iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee BH, which required consultation with the teacher and the TAS allocated to the class, provision of the history of BH, assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. iv) Failing to provide adequate information in relation to records of actual violence, threatened violence, anti social behaviour and/or psychological information of detainee BH and incident prevention or reduction strategies. v) Failure to provide adequate information, instruction and training including on self defence and/or behaviour management. c) The psychological injuries to TAS Mary and TAS Su were a manifestation of the risk. Matter Number IRC 1391 of 2006 On 10 March 2004, at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training) whose address is 35 Bridge Street, Sydney and 477 Pitt Street, Sydney in the State of NSW being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary, in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. The further particulars of the charge are: a) There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer. b) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent detainee TD from being in the class. ii) Failing to have a Juvenile Justice Officer present in the class room to support and monitor students, classes and program delivery staff. iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee TD, which required consultation with the teacher and the TAS allocated to the class, provision of the history of TD, assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. iv) Failing to provide adequate information in relation to the history or incidents of actual violence, threatened violence, anti social behaviour and/or psychological information of detainee TD and incident prevention or reduction strategies. v) Failure to have adequate emergency communication equipment and systems for employees to summons help. vi) Failure to provide adequate information, instruction and training including on self defence, assault response and/or behaviour management. c) The psychological injuries to TAS Mary were a manifestation of the risk. Matter Number 1392 of 2006 Between 10 and 17 March 2004 at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training) whose address is 35 Bridge Street, Sydney in the State of NSW, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary and TAS Su, in that the defendant allowed there to be a psychologically unsafe place of work contrary to the duty under section 8(1) of the Occupational Health and Safety Act 2000. The further particulars of the charge are: a) There was an actual risk of the absence of or inadequate management support increasing the potential danger of an individual teacher's aide special ("TAS") developing occupational stress, namely, post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders. b) Aspects of the defendant's psychologically unsafe place of work were any of the following: i) Failure to provide social support on 10 March 2004 in the form of supportive management or leadership when the Principal left the unit to follow three escaping detainees and thereby left the employees of the unit without adequate support. ii) Failure to provide social support in the form of adequate consultation when the Principal did not make herself aware of the incident on 10 March 2004 in which class teacher Ron and TAS Mary were subject to abuse in the class room and there was not an adequate response to an emergency summonsing for help. iii) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary brought to the attention of the Principal, after the Principal returned from chasing the escaped detainees, that during the 10 March 2004 class room incident an urgent request for help went unanswered. iv) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary on 10 March 2004 at an impromptu staff meeting attempted to discuss safety issues with the Principal. v) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary attempted to raise and discuss matters with the Principal at the next weekly staff meeting after the 10 March 2004 class room incident and escape incident. vi) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when the Principal never sought the views of TAS Su about the bomb scare, class room fight and escape on or after 17 March 2004. vii) Failure to have in place an occupational health and safety committee established by the employer and Departmental employees for the place of work. c) The psychological injuries to TAS Mary and TAS Su were a manifestation of the risk. The legislative scheme 8 Section 8(1) of the OHS Act, which establishes the relevant statutory obligation, provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 9 Section 12 imposes the applicable penalties and s 28 establishes two statutory defences. It provides: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 10 The defendant relied only on the defence provided by s 28(a). Admissions 11 Admissions were made by the defendant in the following terms: 1. Pursuant to s106 (1) (d) of the Occupational Health & Safety Act 2000 ("OHS Act 2000") the Prosecutor was authorised to institute the three charges. 2. Pursuant to s119 of the OHS Act 2000, the defendant is the State of New South Wales in its capacity of the Department of Education and Training or the Department of Juvenile Justice or both. 3. Between 10 and 17 March 2004, the defendant in its capacity of the Department of Juvenile Justice did at all relevant times operate the Cobham Juvenile Justice Centre. 4. Between 10 and 17 March 2004, the defendant in its capacity of the Department of Education and Training did at all relevant times operate the Putland Education and Training Unit. 5. Between 10 and 17 March 2004, the defendant employed TAS Mary and TAS Su. ("the Teacher's Aide Special") 6. From 10 to 12 March 2004 and 15 to 17 March 2004, the Putland Education and Training Unit was a place of work for the Teacher's Aide Special. 12 For its part, the prosecutor relied on s 120 of the OHS Act, specifying the Department of Education and Training ('DET') as the 'responsible agency' for the purpose of these proceedings. The issues 13 It followed that there was no issue as to certain of the elements of each of the three offences, namely, that the defendant was an employer and that it employed employees at its place of work at Putland. 14 There was also no issue between the parties that exposing the defendant's employees to acts of violence, threats of violence and other threatening behaviour at work, could result in injury and that the defendant had an obligation under s 8(1) of the OHS Act, to ensure that this did not occur. Various Government policies in evidence, as well as policies, systems and procedures devised by the defendant, applicable at Putland, were directed to ensuring that DET employees were protected from sustaining an injury from exposure to such risks. 15 Despite this measure of agreement, there were, nevertheless, a very large number of factual and legal issues lying between the parties, which must be resolved, including the fundamental issue as to whether or not the prosecutor had met the onus falling upon it, to prove beyond reasonable doubt that each offence had been committed, as charged. 16 Many of these issues arose because one significant aspect of the defence of the charges was that they had been brought by the prosecutor, a union with coverage of some staff employed at Putland, because of a fundamental misunderstanding. That misunderstanding was said to encompass what Putland was, its purpose, how it operated under the applicable statutory scheme and, consequently, the way in which the defendant ensured the safety of those it employed there, by the practical safety systems which it had in operation. 17 The issues which thus arise for determination may be conveniently grouped under the following headings: 1. What was Putland and how was it operated? 2. What systems had the defendant established at Putland to ensure safety? Sub issues included what these systems were directed at; whether certain paper safety systems were in operation or not and whether there was ongoing staff discontent as to safety issues at Putland. 3. What was the statutory scheme under which Putland was operated and how did that legislation interact with the obligations imposed on the defendant by the OHS Act? 4. What occurred at Putland on 10 March, especially so far as TAS Mary was concerned? 5. What occurred at Putland on 15 March, especially so far as TAS Mary and TAS Su were concerned? 6. What occurred at Putland between 10 and 17 March, especially so far as TAS Mary and TAS Su were concerned? 7. Psychological injury at work - what is 'occupational stress' and 'social support' and what was the experts' evidence? 8. Did TAS Mary and TAS Su suffer psychological injuries? 9. What is the relevant applicable law so far as psychological injury is concerned? Did the prosecutor have to establish that there were sufficient clear indications available to the defendant that TAS Mary and TAS Su were vulnerable to psychological injury - on the pleaded dates of the charges? 10. Were each of the offences charged proven, beyond reasonable doubt? Sub issues included, in each case, whether the prosecutor had proven: (i) that the defendant failed to ensure its employees' health, safety and welfare, by exposing them to the risks in question; (ii) that the exposure to these risks occurred at work; and (iii) that there was a causal connection between the defendant's acts and omissions and the exposure to the risk, particularly having in mind the expert's evidence, as to various matters. 12. The proper construction of s 28(a) of the OHS Act, the defence on which the defendant relied in each case, particularly in relation to the concept of reasonable foreseeability. 13. How does statutory defence operate, especially in the context of a charge relating to a psychological injury? 14. Did the defendant make out that defence in each of the three offences, on the balance of probabilities? The evidence 18 In the prosecution case, evidence was called from Mr Terry Hannan, Industrial Officer - Occupational Health and Safety, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales; Sharon Vasser, Organiser for Schools, Public Service Association of New South Wales; Teacher Ron; Janet Koussa, Consultant and Counselling Psychologist; TAS Mary; Dr Patrick Bannan, Consultant Psychiatrist; Dr Graham Edwards, Psychiatrist; Dr Pierre-Louis Lamarque, Psychologist; Rebecca B, Teacher, Dorchester ETU; Martha Knox Haly, Organisational Psychologist; TAS Su; Suzanne Mann, Loan in Service (organiser in school); Latu Sailosi, Organiser, Public Service Association of New South Wales; Sharan W, School Administrative Manager, Putland ETU. Numerous documents were also tendered. 19 In the defence case, evidence was called from Amanda B, Assistant Principal; Jayne M, Manager Client Services, Cobham Juvenile Justice Centre; Raymond H, VI Maintenance, Maintenance Department, Cobham Juvenile Justice Centre; Ian Armstrong, Manager Human Resource Projects and Administration in Staff and Services Directory; TAS Pam, Putland ETU; Norman Rees, Psychologist; Professor Christopher Tennant, Psychiatrist; David L, previously employed as a Department of Juvenile Justice Officer at Cobham Juvenile Justice Centre; Jon J, Assistant Principal, Putland ETU; Kate W, Principal, Putland ETU; Adrian Hawroyd, Unit Co-ordinator, Cobham Juvenile Justice Centre and Peter Muir, Acting Director-General, Department of Juvenile Justice. 20 The defendant objected to the receipt of expert evidence called from Ms Martha Knox Haly, an occupational psychologist. The objection was unsuccessful. (See Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) [2007] NSWIRComm 105.) What was Putland and how was it operated? 21 Putland, a school located at Cobham, is located in the DET's Penrith area. Putland provides education for youths aged between 10 and 21 years of age, while they are detained on remand for various types of offences, many serious, and many involving acts of violence. Some detainees on remand already have criminal records. In 2004, some detainees attending Putland were subject to control orders, having already been convicted of the offences with which they were charged. 22 Cobham detainees are given the opportunity to attend Putland, to undertake a variety of educational courses offered at both high school and TAFE levels. Cobham is operated by the Department of Juvenile Justice ('the DJJ'). The two Departments have a memorandum of understanding, as to their respective roles and responsibilities. The detainees reside at Cobham in one of a number of residential units. There is also a Children's Court located at the Centre. 23 Because of the nature of the Cobham facility, there is a very significant turnover of detainees attending Putland. The centre houses about 60 detainees at a time. Some 3,000 detainees are located at Cobham over the course of a year. Some detainees return to Putland on more than one occasion. Most detainees remain for relatively short periods of time. Those on control orders remain for longer periods. Some detainees remain at Cobham for considerable periods. 24 All those attending Putland have successfully completed DET courses which permit them to participate in the various classes offered there. In 2004, access to the courses offered at Putland, depended on detainees completing an initial induction programme and then a five day assessment programme, called the 'Access' programme. Detainees returning to Putland were re-assessed during a three day session, known as the 'Focus' programme. Staff commencing work at Putland also undertook an induction programme, the details of which had altered over the years. Teachers also sat in on Access programme, as a part of their induction to Putland. 25 Other programmes conducted at Putland included General Education, Impact (a physical education programme), and vocational courses such as cooking and horticulture. 26 Each morning, detainees undertaking educational courses at Putland were escorted from their units to the school by juvenile justice or youth officers (DJJ officers). Classes typically consisted of six detainees, taught by a teacher, who was assisted by a TAS. DJJ officers did not generally remain in the classrooms with the detainees, but were stationed in the vicinity, so that they could provide assistance, if required. Assistant principals (A/P's) were also available to assist staff with problems arising with detainees during class. 27 In March 2004, the classrooms were located around two quadrangles. In the larger quad, there was a pergola. A number of DJJ officers were stationed at the pergola during class, in order to be able to provide assistance to the school staff, if it was required, or to escort detainees from class, if they had to leave for any reason. An A/P was also located in that quad, available to provide assistance with any issues which might arise in class. That A/P was not always in the quad, being called away on occasions to the classes adjoining a second quad, or on occasions attending to a particular student, in a particular class. 28 The classes on the larger quad each had a glass wall facing onto the quad. There was an issue as to how well those who were stationed in the quad could see into any particular classroom, if the sun was shining onto the glass. On the evidence of some witnesses, at different times during the day, the glare prevented officers from seeing into certain classrooms. Other witnesses did not agree that this was a real difficulty. The issue does not need to be resolved. 29 In some classes, the library for example, where teacher Ron and TAS Mary were working on 15 March, there were things such as display cabinets placed in front of the glass, which partially obscured the view into the room. DJJ officers and A/Ps on duty in the quad could, however, hear if they were hailed from a classroom, the pergola only being quite a short distance away. What systems had the defendant established at Putland to ensure safety? 30 The defendant's case was that it relied on the actual systems which it had in operation at Putland to ensure the safety of its staff. This reflected a sophisticated and complex approach to addressing the risk of violence and anti-social behaviour of detainees, which put staff safety at risk. The existence of this system and its operation in practice, demonstrated that it had complied with the obligations imposed upon it by the OHS Act. It did not rely on its 'paper' systems. The defendant argued that for the prosecution to establish the offences charged, the prosecution had to demonstrate, for example, that the risks posed by TD and BH attending Putland were of such a nature, that additional measures were required, over and above those in place in practice, on the dates in question. That could not be shown. 31 The prosecution's case was that various of the paper systems which the defendant had devised to ensure safety at Putland, were not in operation. The defendant's approach to safety at Putland had led to staff discontent. It followed that those paper systems had to be considered, in determining whether the charges brought had been established, because they demonstrated the defendant's omissions, as did evidence of staff discontent in relation to safety matters. The prosecution's case was that those issues were causally connected with the risk of injury materialising, as the offences charged. Known staff concerns about safety also had to be considered, because they were relevant to the defence, which the defendant sought to establish. 32 What the practical and paper systems actually were, was the subject of dispute, as was whether or not staff were concerned about safety. What were the defendant's safety systems directed at? 33 In order to understand the safety systems, what they were directed to, must be considered. 34 The DET recognised that staff which it employed at all of its schools, including Putland, were at risk of both physical and psychological injury at work. Teachers and TAS were called upon to perform their work at Putland, with detainees known to be violent. Such detainees posed an obvious safety risk, recognised by the DET. 35 The safety systems had to deal with a situation where there were frequent altercations between detainees; detainees also frequently subjected DET and DJJ staff working at Putland, to verbal abuse and also threatened staff with violence. On occasions violence was actually directed at DET staff by detainees and staff also observed violence being directed at other detainees and DJJ staff. Some detainees were charged with assault, as a result of such behaviour. At morning briefings Putland staff were also given information about such behaviour when engaged in by detainees, while in their units at Cobham in the evenings and over the weekends. 36 Both TAS Mary and TAS Su had themselves been involved in situations where violence had erupted between the detainees, before the events of March 2004. 37 DET staff were, on occasions, themselves required to physically intervene in altercations between students, when they perceived a student being attacked might be at risk of serious physical injury, before assistance arrived from DJJ staff. In 2003, TAS Mary had been involved in such an incident. 38 All detainees attending Putland were treated as potentially dangerous and were treated as posing a high risk for staff safety. The system sought to ensure that staff were never alone with any detainee. There was a known risk of hostage taking and violence. By March 2004, most detainees at Cobham had been charged with serious crimes, including arms offences, sexual offences, and various offences involving violence. The older detainees were physically adult sized men, some large adult sized men. 39 Prior to March 2004, both detainees and Putland staff were subjected to violence and threats of violence by detainees. It was the evidence of Mr Armstrong, the DET's District Staff Welfare Officer, that the DET was then aware that a number of Putland staff had gone off on stress related claims for psychological injuries, relating to the environment of the school and issues associated with the detainees. Putland was the only school in the district located within a juvenile justice centre. This gave rise to some circumstances, in terms of the teaching environment, that were not common in the other 58 schools in the district. It was considered to be the most dangerous school, in terms of staff being exposed to actual or threatened violence. That was why various practical safety measures were put in place. The practical systems in operation at Putland The evidence showed that the practical safety systems in operation at Putland, designed to deal with the risk which detainees posed, were multilayered and complex, as the defendant argued. Duress alarms and radios 40 The teacher and TAS in each class were each provided with a personal duress alarm, in the event that they required assistance while in class. The teacher also had a radio, by which assistance could also be called, if required. Such assistance was provided by DJJ officers, the DJJ having custodial responsibility for detainees. Assistance was also provided by A/Ps, depending on the issue which had arisen with a detainee. 41 The duress alarm carried by teachers and TAS staff sounded in the Putland general office as well as illuminating a light, on a board in the office, when activated. The names of those working in each classroom, were identified on that board, which lit up when an alarm was pressed, identifying the classroom in which that person was working. The Office Assistant, Sharan W, or whoever was performing her role, would then respond to the alarm by sending out a call for assistance over the radio. 42 The system had a known difficulty in March 2004. While use of the radio was classroom staffs' quickest means of gaining assistance, if the radio was already in use by someone else, it was not possible to override that conversation. This meant that teachers could not use the radio to call for assistance in such circumstances and if they used their duress alarms to call for assistance, Sharan W could also not use the radio to call for aid. In that event, Sharan W could step from her office, near the doorway to the large quad, to call out to the DJJ officers on duty in the quad, alerting them to the need to attend to the duress alarm. Staff were consequently instructed to keep their use of the radio to a minimum and to change to a second channel, if they needed to have any extended discussion with someone by radio. 43 Staff could also themselves call out from the doorway of their classrooms to DJJ officers in the quad, if assistance was required. On A/P Rebecca's evidence, that was the third method of gaining assistance, the first was the buzzer and then the radio. 44 Even if radio traffic permitted its use for assistance to be called, teachers had a discretion not to use the radio, but instead to use their duress alarm to call for aid, if they judged that using the radio would exacerbate what they were being confronted with, by a detainee or detainees. This was a matter for an individual teacher to judge. 45 Once assistance was called, it was usually provided promptly. A/P Rebecca's experience was that it was rare to get no response, if assistance was sought. Assistance from DJJ staff and A/Ps 46 Classroom staff could seek the assistance of the A/P or by DJJ officers, to deal with any problems which arose in class. DJJ officers were close enough that they could be hailed from the doorway of a classroom. An A/P was either in the quad, or nearby in a classroom, attending to another detainee. 47 A detainee could be taken out of class by an A/P or a DJJ officer, to deal with any poor behaviour. The detainees could be returned to class, if the A/P judged that the detainees' behaviour would improve. On occasions, the A/P would remain in a classroom, after a detainee had been returned, in order to monitor ongoing behaviour. The A/P could also decide not to return a detainee to class, but could send the detainee back to his unit at Cobham. Problems with detainee behaviour arose frequently at Putland, requiring classroom staff to be given assistance by an A/P or DJJ officers. 48 If a detainee was taken from class, he remained under supervision of DJJ officers and/or the A/P in the quad. Detainees were not permitted to wander around the quad unsupervised. Detainees were only permitted to return to class, when allowed to do so by the DJJ staff, or the A/P dealing with them in the quad and they had to be accompanied on their return to class. During recess, there were a large number of DJJ staff and an A/P on duty in the quad to supervise detainees while they took refreshment. Detainees were returned to class at the end of recess, after a head count. They were returned to their units at the end of the school day, by DJJ officers, after another head count. 49 Location of detainees was closely monitored by DET and DJJ staff throughout the day and detainees were always closely supervised and records kept as to their movements and behaviour. Morning briefings 50 DET staff were provided with information as to detainee behaviour, each day. 51 The system involved Putland staff being provided with information each morning from each residential unit at the Centre, as to which detainees would be attending school that day. Each day detainees were allocated to classes and listed on a draft daily activity programme ('DAP') sheet, which was typically discussed by the Principal, all A/Ps, teachers and TAS at morning briefings, conducted before school each day. All Putland staff were required to attend the DAP meeting and if absent, to familiarise themselves with the final DAP sheet, before attending class. These meetings generally lasted for about half an hour and were also attended by DJJ officers, including unit managers, who provided DET staff with information from the residential unit log books, about relevant events which had occurred overnight in the residential units at Cobham. Such DJJ staff could answer questions which Putland staff had. The log information was read out at the briefing, permitting discussion by Putland staff, about matters such as class makeup and whether or not particular detainees should be permitted to attend school. Meetings could continue for longer than the usual half hour, if any issues needed longer discussion. 52 A final DAP sheet was produced at the end of the meeting and a copy was provided to school staff and to the DJJ officers. Detainees were then escorted from their residential units, to their allocated classes by DJJ staff. Apart from recess and lunch breaks, students were only permitted to leave their classes in the company of a DJJ officer, or an A/P, even to attend the bathroom. Detainees movements were recorded, although not always, if the reason for leaving the class was to attend the bathroom. 53 There were issues between the parties as to whether the DAP discussions were effective in March 2004 and whether, in reality, teachers and TAS were permitted to have real input into the decisions made as to detainee attendance, at these morning meetings. Breaks 54 The school day was ordinarily divided into four sessions, with two recess breaks and a lunch break. The first session commenced at about 8.50am, typically about 20 minutes after the morning briefing concluded. 55 Staff left their classrooms and went to the staff room during breaks. Alarms rang five minutes before the end of each teaching session, to allow for packing up. Students' access to materials in class was closely monitored and restricted. All equipment, even pencils, were returned and locked away in this period. Even computer cables were checked at the end of each class, to ensure that detainees did not retain any materials which they could use as weapons. 56 When the second bell rang at the end of each session, detainees left the class, going to the quad where they were supervised by DJJ staff, while they had refreshments, or were returned to their units for lunch. School staff then locked the classrooms and went to the staff room, via the quad. Exit and entry from the quad to the office and staff room was through a cage with two locked doors, to which staff carried keys. The points system 57 Extensive records were maintained of detainee behaviour in class and in residential units. A points reward system was operated, required by the applicable Regulations, whereby detainees could earn points as a reward for good behaviour, both in class and on their units, thereby earning a later bedtime and other privileges. This encouraged detainees otherwise not interested in education, to attend school. 58 At Putland, classroom points were allocated by teachers at the end of each lesson. A maximum of 15 points per class, a total of 60, could be earned each day at school. The system involved teachers explaining to detainees, what points they were to be allocated for the class, at the end of each class and why. Points could also be earned on the units. At Putland they were earned in relation to five School rules: Our behaviour management is based on five rules: stay in the right place follow staff instructions do your best work use appropriate language give everyone a fair go 59 The points system was intended to operate as a reward system. On the evidence, it did not always operate as it was intended to. The attitude of some detainees was that teachers 'took away' the points they were entitled to, not that they had to earn points, which were available to be earned in each class attended. The result was that the points system itself, on occasions, led to threatening and abusive behaviour being directed to DET staff. Information provided to staff, including the alert system 60 The approach operating at Putland was that while details of charges which detainees faced were available to DET staff, if they accessed records kept at the school, staff were encouraged not to be concerned with the particular charges laid against detainees. They were all to be treated as students. Such information was not routinely provided to staff, nor were they provided with ongoing written historical information as to detainees' behaviour, while in detention. Such a history depended on staff recollection of events at Putland and information provided at morning briefings. Nor were staff given access to the CIMS computer system, where such historical information was maintained by the DJJ. 61 While all detainees were treated as being potentially violent and giving rise to a high risk, A/P Rebecca explained that as educators, Putland staff were not concerned with the details of what they had been charged with. The only written information systematically provided in relation to issues of violence in relation to particular detainees, was that conveyed by the alert system in operation. 62 These alerts notified staff of particular matters, including if a detainee was at risk of self harm; had been charged with a sexual offence, (in which case, they were not permitted to be alone with female staff); had been violent in custody; were an escape risk; were a serious offender, or were subject to a behaviour management plan. 63 Detainee alerts were notified to staff daily at morning briefings. They were also recorded on a whiteboard, located near the staff room and were also supposed to be noted by teachers each day in their day books, although the day books did not always contain such information. While no written information was routinely provided in relation to the detainees, there were certain records which staff could have access to, if they wished. 64 Staff were also informed daily of any difficulties which had arisen in the residential units, in relation to the behaviour of particular detainees, since they had last been at school, at each morning briefing. Exclusion of detainees from class 65 Detainees could be excluded from class. Such decisions could be made by DJJ staff, or by the Principal, and in some circumstances by the A/Ps. Teachers and TAS could suggest that particular students should be excluded, or should not be placed within a particular class, or with particular students. They did not, however, themselves have the authority to exclude students from their classes. Such matters could be raised by teachers or TAS staff at morning meetings; later with the A/P to whom the staff member reported; with the duty A/P responsible for the running of the school that day, during the course of the day; or at regular Friday afternoon staff meetings. There was an issue between the parties as to how this aspect of the system operated, in practice, in March 2004. The A/P supervision system 66 Putland had a staff supervision system in place, which involved A/Ps being responsible for supervising the work of a number of teachers and TAS. Any problems were to be raised in the first instance with a staff member's supervising A/P. The A/Ps met regularly with the Principal in executive meetings. It was a matter for the A/Ps to raise problems brought to their attention by staff, with the Principal, so that they could be addressed. There were concerns in March 2004 that this system was not operating effectively. 67 Teachers also had day books, designed to provide a method of communication between teachers and their supervising A/Ps. On the evidence they were not uniformly used for that purpose in March 2004. TAS staff were supervised in class by teachers. The OHS committee 68 There was one safety committee in operation for the entire Cobham Centre, which comprised representatives of both DET and DJJ staff, including Putland. Putland had three representatives on the Committee, the Principal, an A/P and a TAS. 69 In March 2004, there was some staff discontent at Putland with the operation of this Committee and a desire for Putland to have its own committee. The Principal did not share that concern. After the events of March 2004, a separate committee was established. Staff training 70 DET staff were not screened as to their suitability for working in an environment such as Putland, prior to their employment, nor was there any form of assessment during their employment, as to their capacity to deal with the nature of their work. Before a first interview, potential staff were shown around Putland, in order that they could self assess their ability to work under the conditions prevailing at the school. There was also some literature provided, explaining the nature of the school and the detainees who attended it. 71 The DET could provide staff training in self defence and non violent responses to physical threats. Such training, as well as training in restraint techniques, was routinely given to all DJJ staff on commencement of their employment at Cobham and they were required to undertake yearly refresher courses. There was not a similar system in operation for DET staff at Putland. Some staff at Putland had been provided with such training. Neither TAS Su, nor teacher Ron had received such training. Teacher Ron had requested such training, but it had not been provided. TAS Mary had had some such training, but it was out of date. The paper systems 72 The evidence also showed that various of the defendant's paper policies were not in operation at Putland. Given what they envisaged would be done at Putland to ensure staff safety, I am unable to accept the defendant's submissions that they are not relevant to the charges here in question. 73 This follows not only because these policies themselves demonstrated that the risk of psychological injury was one known to the defendant at the relevant time, but they also showed other steps which the defendant had devised to deal with that risk, in addition to the practical safety measures in place. Given that some of these policies were not operating at Putland, or were not being enforced, the prosecution's argument that they revealed steps available to be taken by the defendant, which it failed to take, had to be accepted. It is thus necessary to consider what these paper systems were. Government wide safety initiatives 74 Various arms of Government had developed policies to deal with the risk of violence to staff, across the public sector. The DET had also taken steps to establish paper policies, to ensure that those risks were precluded from manifesting at its schools, including Putland. The failure to implement such policies, is thus relevant both to a consideration of whether the offences charged were established, as well as to whether the defence which the defendant sought to establish, was made out. 75 Violence in workplaces giving rise to occupational health and safety issues, was no new phenomena in 2004. The predecessor to the current Act was enacted in 1983. Unsurprisingly, over time since then, various Government agencies have given attention to this problem and how it might be addressed in workplaces. 76 In November 2002, the WorkCover Authority of New South Wales published a document, 'Workplace Violence', which identified various categories of violence which can arise in workplaces. They included - Type 2, consumer/client related violence, which included violence against staff, vicarious trauma to staff and staff violence to consumer/clients and Type 4, organisational, which involved organisations knowingly placing staff in dangerous or violent situations, or allowing a climate of abuse, bullying or harassment to thrive in the workplace. 77 The risks which arose from violence and other stressors at work, occupational stress, that is 'the emotions people feel in upsetting circumstances', also became the subject of a Hazard Identification and Risk Management Strategy, issued by the Premier's Department, in September 2003. This strategy, it was explained, was concerned that 'sustained emotional upset in some situations might lead to diagnosed physical, psychological, or psychiatric illness or disease which has been substantially caused or aggravated as the result of work circumstances'. 78 The Premier's Department strategy was intended to improve occupational health and safety systems across the public sector. It required that: The management of causes of occupational stress should be undertaken in consultation with employees and unions and should involve a process of: § hazard identification to determine actual and potential hazards; § as assessment of identified or potential risks to the health and safety of employees; and § development and implementation of a risk management strategy designed to eliminate or control hazards. Successful prevention and management of stress-related problems will depend on effective local management strategies. Such strategies should be thoroughly planned, adequately resourced and linked to agency corporate directions and performance. They should address identified organisational stressors and incorporate improvements in work organisation, job design, quality of supervision, OHS directions and general management practices. 79 The risk management strategy involved a number of stages - stage 1, senior management commitment and responsibility; stage 2, a hazard identification process, which would assist in establishing a baseline of the indicators of occupational stress in the workplace; how people experiencing a stress response were identified and managed; obtaining data to assess the nature and scope of the risk of occupational stress and identifying stressors; stage 3 risk assessment of identified risks; and stage 4, developing, implementing and resourcing the risk management strategy. 80 On the evidence, this Government policy was also not implemented at Putland. Nevertheless, what all this and other of the paper policies in evidence demonstrated, to the requisite standard, was that the risk of psychological injury resulting from the work DET staff were called upon to perform at Putland, which exposed them to violence and threats of violence, was well known to the defendant, at the time of these alleged offences in March 2004. The 2002 DET 'Guide to Occupational health safety and injury management' 81 In 2002, the DET had published a 'Guide to Occupational health, safety and injury management', designed to provide 'information and advice for principals and other staff members to develop or revise their own workplace procedures and guidelines for occupational health and safety.' 82 Detainee violence and threatening behaviour against staff and other detainees, was an issue which the DET constantly had to confront at Putland. Prior to March 2004, it had resulted in staff injuries and leave. 83 This Guide advised that principals were obliged to know hazards in their workplace; to find ways to eliminate or control them; to warn employees about the hazards and to train them in safe work practices. Principals were directed to use a WorkCover hazard identification tool known as 'Hazpak', to identify hazards, including psychological hazards, such as interpersonal conflict, as well as physical or psychological damage caused by student violence. The elimination of such hazards was explained to be more complex, because 'the potential source is invariably people and interpersonal relationships.' The Guide also directed that 'stress is considered a psychological hazard and, within the context of a workplace risk management system, must be identified, assessed and controlled where possible.' Risk control , monitoring and review, were all emphasised. 84 Despite this policy, the Hazpak tool was not used to assess risks which detainees posed for staff at Putland. Although the Principal claimed that the principles underlying the tool were used, for example at morning briefings, the evidence showed that no risk assessment of the kind required by this policy had been undertaken at Putland, in relation to this particular risk, by March 2004. 85 This DET Guide also dealt expressly with workplace stress management. It required workplace managers to identify possible causes of stress and to explore ways of managing them, by making appropriate changes. A hazard identification process was specified, so that an occupational anti-stress program could be developed. It required the review of information such as workers compensation claims; incident reports; absenteeism, sick leave; complaints; staff turnover and staff morale, so that a risk assessment could be conducted. 86 The Principal also confirmed in her evidence that this policy was not in operation at Putland in March 2004, other than perhaps, in some ad hoc way. That approach had failed to adequately identify that TAS Su and TAS Mary were at risk of psychological injury, in March 2004. Certainly no steps were taken to manage that risk, in so far as it had been identified by the Principal, despite she then being of the view that neither TAS Su nor TAS Mary were then coping at work. The DET/DJJ agreement 87 Workplace violence was a feature of work at Putland, which was well known and sought to be guarded against by the defendant, in the practical systems on which it relied. Those practical systems at Putland operated under a 2002 memorandum of understanding, between the DET and DJJ, which provided, as to risk management: 2.1 Risk management A risk assessment will be conducted of each course, program or module delivered by any provider to young people in custody, regardless of whether delivery occurs on or off-site. Each course, program or module will be identified as high, medium or low risk. Risk management includes: § managing the risk of property and plant § managing the risk of detainee's behaviour § identifying the level of risk of every program or module delivered by any provider to young people in custody. A risk assessment of every detainee participating in a course, program or module will be conducted by juvenile justice centre and education and training unit personnel. The Department of Juvenile Justice will provide an adequate number officer(s) to the education and training unit to support and monitor students, classes and program delivery staff. The LEATCC will make a recommendation to the centre management team about what an adequate level of staffing is for each program. 88 That by March 2004, 'a risk assessment of every detainee participant' in a course had been conducted at Putland, as was implicit in this document, was not apparent on the evidence. Instead, all detainees at Putland were assessed as presenting the same risk - a high risk - all of the time. Various practical measures were in place to identify whether any heightened risk existed on any day, but whether the measures implemented to deal with such heightened risks were adequate, was in issue. The LEATCC Policy 89 The DET/DJJ agreement was implemented in practice at Putland in various ways, including through the activities of the Local Education and Training Coordinating Committee ('LEATCC'). It issued a 2003 policy document, which had been revised in 2002, whose purpose was to 'identify Cobham's aims for education and training provision'. The policy said amongst other things that the philosophy at Cobham was : "one teachable moment well spent has the potential to make a difference" · We are provided with a valuable opportunity to make a difference in the lives of some often very damaged young people. · Education and training is the catalyst for change. It is therefore the way in which people who work with the detainees in Cobham can help turn the young people's lives around with the intention of "breaking the crime cycle" and the ultimate goal of facilitating community integration. · Education and training of the young people is the reason for programs. · We are committed to meeting as many of the education and training needs of as many of the young men at Cobham as possible. · We are committed to a collaborative and totally integrated service delivery model. 90 As to risk, the 'philosophical response' noted in this policy was: § We believe that "one teachable moment well spent has the potential to make a difference". § We may provide the last opportunity for our clients to access education and training. § We are committed to providing equal opportunity to detainees regarding access to education and training. § Risk is inherent in the nature of our clients and the setting in which work. § We believe that risk should be managed by implementing controls rather than denying detainees access to education an(sic) training provision. § It must be remembered that our extremely high turnover means that decisions must be made quickly in order that we may provide meaningful educational service. § Remandees are by law innocent until proven guilty. § We believe that good communication is vital and that all relevant information must be shared with all stakeholders. 91 The evidence suggested that the emphasis placed in this document on giving detainees access to education, was in practice, achieved at the expense of staff safety, when controls implemented by the defendant failed to prevent staff exposure to violence and threats of violence from detainees. The aim of 'all relevant information' being shared with all stakeholders, was certainly not achieved in practice, on the evidence. 92 While the Hazpak tool was used to risk assess the various programmes conducted at Putland - all assessed to be low risk, it was not used to assess detainees. The risk assessment of programmes involved both the LEATCC and the Cobham Occupational Health and Safety Committee. The approach adopted to detainees was that all detainees were assessed to be of high risk, so that they were given access only to programmes assessed to be low risk, as a way of controlling the high risk to safety which the detainees posed. 93 What this LEATCC policy document did not provide for, was a risk assessment of students undertaking particular classes. On the evidence of the Principal, such a risk assessment was undertaken in practice at Putland, through the application of 'the principles' underlying the WorkCover risk assessment tool, Hazpak, in various ways, particularly at morning briefings. While the defendant submitted that there was no statutory, or other obligation, to use that tool to assess the risks which individual detainees presented, it cannot be overlooked that the DET's own 2002 'Guide to Occupational health safety and injury management', did contemplate the use of that tool. 94 Despite this, at Putland, the Hazpak tool was not used in order to assess the risks posed by particular detainees, or their participation in any particular class, or the combination of detainees attending any class, on any particular day. Before being permitted to undertake classes, they each had to go through the Induction Program and the Access programme. If returning to Putland after an absence, they had to undertake a shorter re-entry programme, the Focus programme. 95 None of these programmes ever resulted in an individual risk assessment for a detainee, having regard to the detainee's particular circumstances. The Taking Safety Seriously policy 96 In December 2002, a draft 'Taking Safety Seriously' policy was issued by the DET, in response to the death of a TAS at Yasmar, as the Principal explained in her evidence. This policy was never finalised, apparently, but the Principal's evidence was that it was, nevertheless, implemented in practice at Putland. It envisaged that a particular approach would be adopted to the risk management of student behaviour, including use of a 'Risk Management student behaviour profile' document, which assessed detainee behaviour, in various respects. This profile had to be signed off by the Centre Support Team ('CST'), the Principal and the Centre Manager, with input from other staff such as ETU staff, psychologist nurses and counsellors. 97 On the evidence such a profile document was also not in use at Putland, by March 2004. The written information which this policy contemplated would be provided to staff, was not provided at Putland. The 2000 'Management of serious incidents Guideline' 98 In March 2004, the DET also had in place a 2000 'Management of Serious Incidents Guideline', which also required the identification of hazards, including psychological hazards; assessing risk and ranking them in priority; controlling hazards and monitoring and reviewing the process. Serious incidents had to be reported by a Principal to district superintendents. The Guideline dealt with the importance of providing counselling to affected staff after a serious incident. It directed: Workplace managers and other key staff should: § ensure that the information about the serious incident provided to students and staff is understood, that an opportunity is available to ask questions, and that information is provided by a trained counsellor about the emotional reactions likely to be experienced by those affected by the incident; § ensure that individuals, or groups of individuals are able to speak with a counsellor immediately, if they wish; and § ensure that individuals who need further counselling are identified and arrangements made for its future provision. 99 On the evidence, this direction was not complied with at Putland, either after the 10 March or 15 March incidents. A 'serious incident' was defined as: A serious incident for the purpose of this document is broadly defined as an event which: § causes disruption to an organisation; or § creates significant danger or risk that could traumatically affect individuals within the organisation; or § impacts on the effective operation of workplaces; or § attracts negative media attention or a negative public profile for the workplace or the Department of Education and Training. WorkCover also uses the terms serious incidents and other incidents to describe particular work-related incidents. Incidents defined in this way by WorkCover must be reported by law (refer to Appendix 10.) 100 Examples provided included 'violence between students' or the assault of a student or a staff member; threats to the safety of students or staff, including the presence at the workplace of an individual behaving in a dangerous or threatening manner; and bomb threats. 101 A serious incident report was provided by the Principal in relation to the escape of a number of detainees from Putland on 10 March. The serious incident report in relation to the 10 March incident indicated, amongst other things, that: An AP and the principal responded to teachers' request for support during the session. During first recess, while students were being supervised by DJJ staff in the ETU, three students escaped through the ETU vocational area, over the fence and left the custodial area via the construction site. One detainee was subsequently apprehended and returned to Cobham. At the same time two students were involved in a physical altercation in the main courtyard witnessed by a several ETU staff. Investigation by DJJ personnel determined that security in the ETU vocational area required enhancement. Consequently the ETU will be unable to occupy this area until the works have been completed. The ETU had access to seven classrooms prior to the escape. Until DJJ completes the security enhancements, ETU will have access to only three classrooms. 102 That report did not deal with what had occurred that day with TD in teacher Ron and TAS Mary's class. As the Principal conceded in her evidence, that event was a serious incident, and under this policy, should have been reported, involving as it did, a serious breakdown of the practical safety system in operation at Putland. Despite this, no serious incident report was generated; the matter was never investigated and attempts made by the staff to discuss the matter with the Principal were deflected. There was a serious incident report issued by the Principal for the 15 March incident. 103 This 'Management of Serious Incidents Guideline' policy was not adhered to at Putland, in other respects. For example, the policy required Putland to have a Serious Incidents Committee, which met twice a year and after each serious incident. Neither this Committee, nor an Occupational Health and Safety Committee, which could have undertaken the work required, existed at Putland. There was an overall Safety Committee for Cobham, but no evidence that either of the two serious incident reports which the Principal provided in respect of 10 and 15 March, were referred to, or considered by that Committee. 104 It was the Principal's evidence that on her return to Putland on 10 March, after being involved in the pursuit of the escapees, a staff meeting was in progress. It was suggested to her by staff present, that there be a staff review of what had occurred, which she declined, because, in her opinion, that was a matter for the DJJ. 105 Instead of discussing staff concerns about the events of 10 March, with staff, the Principal directed that the school staff were not to discuss those matters together; there was no investigation of, or explanation for, the failure to provide a response to the duress alarms sounded from TAS Mary and teacher Ron's class on 10 March, or the other departures from applicable policies, that day. Instead, staff were told that the matter was to be dealt with by the DJJ. This was also inconsistent with the 'recovery time line' aspect of this Guideline, which directed that within the first 24 hours: § organise a meeting with all relevant persons for the purpose of updating them on the incident situation and for discussion of personal issues and concerns; § arrange counselling as needed; § work with the media; § keep staff, students, and parents informed; and § complete and forward a Serious Incident Report to the district superintendent or institute director 106 The Guide also provided that: Access to appropriately qualified counselling personnel is part of the support needed. These personnel can be either internal or external providers. In the case of students, school, college or campus counsellors should be used in the first instance. The Employee Assistance Program provides counselling for staff individually or in groups. In addition to the provision of counselling, managers and staff can assist by spending time with the person, listening and reflecting on their comments about the experience. Where appropriate, workplace managers can re-iterate the availability of counselling. It should be noted that the incident need not be reported as serious incident for counselling to be made available. 107 It was the defendant's case that this aspect of the Guideline was adhered to, in the support provided to staff by their supervising A/Ps. On the evidence that submission was made good. A/P Rebecca's evidence, for example, was that she spoke to TAS Mary and teacher Ron on 10 and 15 March and suggested that they might speak to the school counsellor and the Employment Assistance Programme ('EAP'). The evidence as to the Principal's treatment of TAS Mary, however, was not consistent with what this policy contemplated, a matter to which it will be necessary to return. 108 There was no evidence that the DJJ or DET ever investigated why there was no assistance provided to teacher Ron or TAS Mary in class, on 10 March. On the evidence, however, despite the Principal's failure to adhere to this policy, a further wall mounted duress system was installed in each classroom, after 10 March 2004. This sounded in the administration centre of the detention centre, manned by DJJ staff and, no doubt, assisted in remedying the ongoing difficulties with the operation of the radio system by DET staff, to call for assistance to classrooms from DJJ staff at Cobham, when duress alarms were sounded by staff in the DET. The 2003 Putland Management Plan 109 The 2003 Putland Management Plan identified that improving risk assessment and risk management, was a 2003 target. All procedures were to be documented and staff were to be involved in the development and implementation of risk assessment and risk management strategies. Given the evidence of the ongoing staff concerns as to safety in 2004 and the Principal's attitude to safety being a matter for the DJJ to ensure, not the DET, it was evident that this target had not been achieved by March 2004. 110 Detainee risk assessment was on the Occupational Health and Safety Committee agenda in April 2003. The minutes recorded that: § Concern re apparent lack of consultation with stakeholders during development of draft document § consultation should take place with all stakeholders, particularly staff who will be required to implement the procedures § concern that the specific needs of a remand facility appear not to have been addressed § concern re the relationship between this document and other policies and procedures currently being developed eg: programming; classification; and operations manual. 111 In June 2003, the defendant conducted an internal OHS audit review process at Putland, which, amongst other things, measured incident reporting, investigation, analysis and review and risk assessment and control. It was noted that risk assessment was conducted for all client programmes, in consultation with the OHS Committee, but that risk assessments for identified hazards, was not routine. A 'D' rating was awarded for risk assessment, because of the absence of a formal process for risk assessment of workplace hazards. It was, however, concluded that incident investigation did occur routinely, with analysis having led to improvements to safety. There was, nevertheless, a 'C' rating given for incident reporting, investigation analysis and review, because of the absence of a system for the review of incidents by the Safety Committee. It was recommended that: 1. Fully implement the Risk Management Procedure, which include the risk assessment of hazards, the development of controls in consultation with staff and the recording of the process on an Action Plan that includes time frames and responsibilities. Completion Date: 30 November 2003 2. OHS Committee to review OHS incident data at least quarterly with a view to incorporating the outcomes into the risk management process as appropriate. Completion Date: 30 September 2003 112 On the evidence, by March 2004, this had not occurred. OHS Committee activities and detainee risk assessment 113 Risk assessment of individual detainees was an ongoing challenge at Putland. The minutes of meetings of the Cobham Occupational Health and Safety Committee, showed that in October 2002, 'the process for risk assessment and risk management of Cobham and ETU programs and detainees is currently under review'. As it transpired, that review occupied a considerable period of time and was not complete in 2004, at the time of the alleged offences. 114 That there was no separate occupational, health and safety committee at Putland in 2004, was a matter of staff discontent at the time. The Principal, an A/P and a TAS, were the Putland representatives on the Cobham Occupational Health and Safety Committee. Risk assessment was a matter of ongoing consideration by that Committee. Minutes of meetings of the Committee showed, however, that the committee had difficulty in coming to grips with risk assessment at Putland. 115 In January 2004, the Occupational Health and Safety Committee minutes recorded that it was to assess the risk management procedures of LEATCC client programmes, which required approval. The matter was again on the agenda of the February meeting. 116 Later in 2004, written risk assessments of the various programmes provided at Putland were issued. They were signed by the Principal, the Centre Manager and an LEATCC representative in May 2004. A Cobham Occupational Health and Safety Committee representative did not sign the assessments until August 2004. The Principal's evidence was that despite the dates on which these documents were signed, they were in practical operation earlier. 117 Despite the lengthy process which produced these documents, some of the risk assessments were deficient on their face. For example, the assessments for the Access and Focus programmes, undertaken by detainees entering or returning to Putland, dealt with the potential hazard arising from challenging behaviour by detainees. All detainees who successfully completed such programmes were regarded to be high risk. Despite this, in the case of other programmes, which were undertaken by detainees once those introductory programmes had been completed successfully, including the General Education class in which problems arose on 10 and 15 March 2004, the programme risk assessment took no similar account of the particular hazards which could be posed by challenging behaviour, on the part of the detainees participating in that programme. 118 That attention should have been paid to that hazard cannot be doubted, given the evidence as to the acts of violence and other threatening behaviour which detainees frequently engaged in, during such classes at Putland, after having successfully completed the Access programme. That attention was paid to the risk in the Focus and Access programmes, but not programmes later undertaken, was an obvious gap in the assessment. 119 In the case of the risk assessment document for the General Education class taught by teacher Ron and TAS Mary, it was noted that: For example centre support staff may identify detainees unsuitable for participation due to current health, psychological or drug issues. Other detainee exceptional risk factors may be identified through the daily risk assessment process. If this process determines that elimination is the appropriate control, the identified detainee will not participate. 120 This expressly envisaged that detainees assessed either by DJJ staff, or at the morning DAP meeting, as presenting 'exceptional risk factors', could be precluded from attending class. This was contrary to the defendant's case, that on 10 and 15 March, excluding TD and BH from class would merely have transferred the risk which they presented to others working at Cobham. 121 Daily programme hazard identification documents in use at Putland in March 2004, did not deal with particular hazards posed by detainees. On the evidence, that issue was dealt with at DAP meetings, attended by all Putland staff and some DJJ officers each morning before school. Information as to student behaviour since last attending school was then shared and considered. A draft DAP sheet was discussed and settled. On the Principal's evidence, the Hazpak tool was not used in this meeting to identify whether any student, or proposed combination of students in any class, presented any particular hazard that day, but the 'principles underpinning' that tool were used. That evidence was not consistent with the evidence of other witnesses, as to how these discussions were, in fact, undertaken. 122 Even apart from that controversy, the obvious difficulty with the approach adopted was that it was ad hoc, rather than systematic and relied heavily on information as to conduct engaged in by detainees in their units, being read out at the meeting. There was evidence that a detainee's most recent behaviour, was the best predictor of the risk of further violence and other challenging behaviour. It was not the only predictor. The approach adopted in practice did not ensure that there was any ongoing record of detainee conduct, able to be considered by those determining each morning what access detainees should have to Putland programmes and what detainees should be placed together in class. This was despite the Taking Safety Seriously Policy envisaging that there would be such a document provided to staff. 123 Instead, current information conveyed orally at the meeting, was considered by those attending, in the context that all detainees were universally regarded to be 'high risk'. The evidence of the nature of the detainees at Putland, the propensity which many of them had to act violently and in other threatening ways, the fact that many of them did engage in that behaviour, helped explain why they were all regarded to be high risk. 124 What the evidence also showed, however, was that in March 2004, there was a recognised ongoing problem with risk assessment of detainees' behaviour at Putland. There was a Centre Support Team which considered individual detainees referred to it, when behavioural issues arose. Nevertheless, applicable DET policies for detainee risk assessment were not in operation. The practical systems which were operating, namely the assessment made at morning DAP meetings, were not a reliable way of determining which detainees would engage in behaviour which might put staff safety at risk that day. Such situations still arose frequently in class, with the result that staff then had to deal with what they were confronted with. 125 The Principal's evidence was that to have applied Hazpak to risk assessment of detainees at Putland, would have effectively precluded the school being run. That evidence was difficult to accept, but even if correct, did not alter the fact that the morning DAP meeting process operating at Putland, was unable to identify all detainees who should not be given access to class that day, if staff safety was to be assured. 126 The daily assessment was made at a meeting which took some 20 to 30 minutes in total to complete, although it could take longer, if necessary. The assessment was of all detainees (up to 60), who would be attending that day, at a morning meeting of staff, based on information conveyed orally of relevant behaviour since the detainees had last attended school, together with any notified alerts. There were no documented records of ongoing detainee behaviour provided. Of necessity, this approach relied, in part, on staff members' memories of students' past behaviour. 127 In a system where some detainees were only briefly at Putland, others remained for relatively short periods, but later returned and still others remained for longer, or even quite lengthy periods, that this could have been an approach which ensured safe assessment of 'exceptional risks' posed by particular detainees on any particular day, let alone the hazards potentially arising from interaction between up to six detainees attending one class, seems unlikely. Putland staff had to deal with individual detainees who posed risks as a result of their own behaviour, as well as situations where violence often flared between members of differing racial and other groups. There were also other known reasons for tensions arising and leading to outbreaks of violence in classrooms. 128 All of this, no doubt, explains the poor results of the safety audit at Putland in 2003 and the change in the system by which risk assessments of detainees began to be undertaken, after March 2004. 129 The approach adopted at Putland also contrasted to that adopted by the DJJ. It had a written procedure for 'Behaviour Management - Managing Difficult Behaviour'. This document noted that: There is a significant link between managing difficult behaviour and risk assessment, and the management of identified risk. A detainee's difficult behaviour (eg. assault, fighting, threats of violence) presents some of the greatest risks to staff and other detainees. § The behaviour provides information about risk, and enables staff to assess and re-assess the detainee's risk rating and program participation. § The response, if it demonstrates consideration of the best possible way to reduce the behaviour, and to stop it occurring in the future, reduces the level of risk and enables staff to identify a wider range of risk controls. 130 This DJJ procedure required a written record of 'each behaviour management event and the reporting and decision making process' to be maintained daily by staff. This running record of behaviour was used by the DJJ to predict and deal with difficult behaviour, including the development of behaviour management plans for detainees. That written record was not shared with the DET. 131 On 10 March, 15 March and 17 March, the morning DAP process was ineffective in identifying and eliminating the hazards posed that day by detainees in the classes in which TAS Mary and TAS Su were involved. Changes followed. 132 On 21 March 2004, the Principal issued a memo to staff, reminding them that morning briefings were 'an essential component of our risk assessment and risk management process', and that it had been introduced after the 'fatal stabbing of a colleague' at another detention centre educational training unit. 133 Later in 2004, Putland introduced a new risk assessment procedure for detainees. This was, undoubtedly, a sensible response to the problems which had earlier occurred, according with Professor Tennant's view that detainees who were violent or threatening violence, should be individually assessed. By that time, it was apparent that teacher Ron, TAS Mary and TAS Su had sustained serious psychological injuries at work and would not be returning to Putland. Was there ongoing staff discontent at Putland as to safety matters? 134 There had been tension at Putland between various DET staff and the Principal over safety issues for some time before 10 March 2004. The establishment of a separate occupational health and safety committee at Putland had been sought, but one had not been established; training in self defence ('PART training'), which the DET provided, had been sought by some staff, but had not been provided; there had been dissatisfaction with how an infestation of bird lice at the school had been dealt with; there was concern about the safety of class arrangements introduced during a building programme then ongoing at Cobham, which had resulted in classes of more than six detainees being conducted in one room; and there was also dissatisfaction with how staff concerns about the admission of particular detainees to classes, were dealt with at morning briefings. 135 Staff had involved both the PSA and the Teachers Federation in their concerns. A dispute was notified to the Commission by the PSA in 2004. Some staff members also pursued individual grievances against the Principal. Earlier in 2004, the Principal had agreed with the PSA that: 1. TAS and SASS issues will not be trivialised but treated with priority and importance they deserve. 2. To establish that every TAS and SASS have avenues of help beyond their first step. 3. If issues are not dealt with or solved through communication with supervisor then access to the principal via appointment is guaranteed. 4. There will be no repercussions for TAS and SASS who involve the PSA in their disputes. 5. There will not be favouritism for non-union members in the areas of treatments for tasks given. 6. TAS and SASS will not be subjected to bullying, intimidation or harassment from any member of staff. These practices are a serious breach of the OH&S Act and will be, if not addressed, taken further by this Association. 136 The evidence was that some staff, including TAS Mary and TAS Su, perceived there to be an approach of intimidation and bullying adopted by the Principal to certain staff at meetings and that her approach to safety matters compromised the safety of staff. Other staff did not have that perception. 137 On 5 March 2004, there was a bomb scare at Cobham, which resulted in the evacuation of the detainees and staff from Putland. Staff stood outside the school for about an hour, before they were told that they could return. There was an issue between the parties as to the circumstances in which staff were advised of the bomb scare; the way in which the evacuation was organised and what they were told, when instructed to leave and to return to the school. Prior to this bomb scare, there had been no drills conducted in how the school would be evacuated, in the event of a bomb scare. This, too, led to safety concerns on the part of some staff, but not others. 138 There was an escape from the centre by three detainees on 10 March. There had been no drills conducted for staff in how they should respond to such a situation, even though the applicable policies envisaged that there should be a plan for such a situation and drills in the planned response. Putland staff wanted to discuss how safety could be improved, in the aftermath of the escape. On 10 March, and on subsequent days, the Principal refused to permit such discussions. On the evidence this approach heightened concerns held by TAS Mary and TAS Su, as to their safety. What was the statutory scheme under which Putland was operated and how did that legislation interact with the obligations imposed on the defendant by the OHS Act? 139 Cobham was conducted by the DJJ in accordance with the provisions of the Children (Detention Centres) Act 1987. That legislation regulated the way in which detainees were to be treated and how detainees' misbehaviour was to be dealt with. Detainees were regarded both as having the right to an education and were encouraged to pursue it at Putland. Under this legislation, detainees under 15 years of age, were obliged to participate in such education and the defendant was obliged to provide it. Even so, the Children (Detention Centres) Act permitted the use of the mechanism of detainee exclusion from class, in the event of misbehaviour, although the mechanism was the subject of specified controls. Thus removal from class and confinement for specified periods of time, were mechanisms in frequent use at Putland, to deal with detainee misbehaviour. 140 Detainees frequently engaged in and threatened violence and directed other threatening behaviour towards other detainees and DJJ and DET staff. On the evidence, education alleviated detainee boredom, a recognised safety risk for DJJ staff. In that context, the importance of the opportunity which Putland offered detainees incarcerated at Cobham, in ensuring that while in remand, they continued to have access to education, cannot be understated. That opportunity was not only one which was consistent with the statutory requirement, that even while being punished, detainees must be given 'some means of usefully occupying himself or herself' (s 21(2)(a) of the Children (Detention Centres) Act), it was also one plainly in the public interest and in accordance with the obligations imposed upon the defendant by the OHS Act, to ensure its employees' safety. 141 Access to continuing education thus provided the detainees with activities which had the potential benefit of reducing the stress, anxiety and boredom created by the incarceration of a group of young men, many of whom came from disadvantaged backgrounds, while they were detained on remand. Had the opportunity to attend Putland not been available to the detainees, the risks which people who worked with the detainees at Cobham were exposed to, may well have been even more serious than the undoubted risks which the detainees created for those workers. 142 The benefit which access to education provided to the detainees themselves, should thus not be understated. Education potentially provided them with a means to choose a different path in life, to that which they had chosen to that point, which had brought them to Cobham. That the employees of the DET working at Putland were aware of, and supported such concerns, was also very apparent from the evidence of various of the witnesses and in the policy documents in evidence. 143 That attitude was very much to their credit and that of the defendant, given the challenge which working with the detainees incarcerated at Cobham presented. Cobham and Putland staff, undoubtedly, undertake difficult and socially important work. 144 It is in this context that the obligations which the OHS Act imposed upon the defendant, arose for consideration. That legislation imposed an absolute obligation to ensure the safety of those employed to work at Putland. The defendant was plainly aware of its obligations and sought to address them in various ways, through the policies and practices which the DET and DJJ implemented at Putland - both paper systems and those operating in practice. The DET and the DJJ, also had other obligations which they had to meet, such as those which fell upon them under the Children (Detention Centres) Act, in relation to the welfare and safety of the detainees. 145 It was the defendant's case that it had to balance these two statutory obligations, in a way which meant that the obligations imposed by the OHS Act, had to give way to those imposed by the Children (Detention Centres) Act. I am unable to accept that submission. 146 I am satisfied, for similar reasons to those which I discussed in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245, that in meeting the statutory obligations which it had in respect of detainees at Putland, the defendant could not sacrifice the safety of its staff, which the OHS Act required that it ensure. 147 In this case, the defendant did not seek to challenge the correctness of the conclusions reached by the President, Justice Boland, in Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [291], that the offences created by s 8 of the OHS Act, were absolute liability offences. In coming to that conclusion, his Honour followed well settled law discussed, for example, in Newcastle Wallsend Coal Company Pty Limited v McMartin (2006) 159 IR 121 at [214] - [215], in the context of the predecessor to the Act, the Occupational Health and Safety Act 1983. As the defendant accepted, there is no reason to doubt the correctness of Boland J's conclusions, in the context of the current Act. It has been confirmed by the Court of Appeal decision in Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465 at [304]. 148 Given the nature of the obligations imposed by the OHS Act, I adhere to the views which I reached in Central Sydney Area Health Service. There I observed at [90]: No matter how dedicated to patient welfare a nurse or other employee might be, it is inconsistent with the requirements of the Act, that the defendant permit them to be the subject of physical assault, or indeed repeated physical assault, by patients who are not restrained from harming others. Employment on such a basis is not permitted by the Act. 149 That approach has been followed in a number of other cases. (See, for example, WorkCover Authority (NSW) (Inspector Stewart) v Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207 (at 227).) 150 I am also satisfied that the observations I made in Central Sydney Area Health Service apply equally, in the context of the statutory regime applying to the treatment of detainees at Putland. In ensuring that the obligations imposed upon it by the Children (Detention Centres) Act were met by the defendant, it could not ignore its obligation to ensure the safety of its staff. The OHS Act does not permit employment on such a basis. 151 For its part, the defendant relied on the approach of her Honour Justice Kavanagh in Johnson v State of NSW (Department of Education and Training) [2006] NSWIRComm 109 at [184 - [186]: 184 It was submitted when there are competing considerations, there is conflict as to what is the preferred obligation (see Central Area Health Services ). I do not accept where there are concurrent obligations that safe working should be perceived as the "preferred" obligation. 185 There must be a balancing of the absolute obligation imposed by the OHS Act to provide safe working with the obligation to educate under the Education Act 1990. Read together, on the facts before me, while the student had a right to an education from the defendant, the defendant, as an employer, had also an obligation to provide a safe working environment for its teachers. In the circumstance his attendance at the school did not create a competing obligation to the defendant's obligation to provide a safe working environment. The obligations were concurrent obligations not obligations in conflict or in competition. The defendant's own policies revealed the balancing of both obligations was given consideration in its policy formulation. The policies provided a range of alternative ways to accommodate the individual student with behavioural problems so that the defendant could comply with its obligation to provide an education for those students with behavioural problems. The policy allowed for a risk assessment of such a student to ensure strategies were developed to allow for that student's education within a safe work environment for its teachers. 186 At issue therefore is whether these charges establish there was a failure by the defendant to ensure the health, safety and welfare of the relevant teachers given AL had a right to an education in New South Wales. 152 The defendant submitted that her Honour's approach was correct and must be applied in this case. The prosecutor argued that her Honour had erred and that the approach in Central Sydney Area Health Service must be followed. 153 If her Honour was suggesting in Johnson, that the absolute obligation imposed by the OHS Act on the defendant, to ensure the safety of its employees at work, need not be met, when the defendant also had an obligation imposed by the other statutory obligation there in question, to provide education to students attending its schools, with the result that the education had to be provided, even if the only way in which that could be done, was at the risk of its employees' safety, I find myself in disagreement with her Honour. 154 I do not, however, read her Honour's judgment in Johnson as so providing. The conclusions which her Honour reached as to the defendant's failures to ensure safety, on the evidence there before her, led to the conclusion that the defendant was guilty of certain offences charged under the OHS Act. While her Honour spoke of 'balancing' of statutory obligations, in coming to her conclusions, her Honour took the view that even though both statutory obligations imposed on the defendant had to be met by it, in the approach adopted in the circumstances which had led to the charges, the defendant had failed to ensure safety, as the OHS Act required of it. 155 In this case, that the defendant also did not approach its obligations at Putland, on the basis that the statutory obligation to provide detainees with access to education, overrode its obligation to ensure its employees' safety, was, in any event, apparent, given the policies and procedures in evidence. They recognised the risk of injury at work, potentially flowing from employees' exposure to detainees' violent and threatening behaviour and established mechanisms designed to ensure that those risks did not manifest. Those mechanisms included excluding detainees from class completely, if their behaviour put employees' safety at risk. That mechanism was one provided for by the Children (Detention Centres) Act and was implemented at Putland, if judged necessary. None of the defendant's policies or systems required that detainees would be provided with access to classes at Putland, even if staff safety could not be ensured. What occurred at Putland on 10 March, especially so far as TAS Mary was concerned? 156 There were issues between the parties as to what had, in fact, occurred, at particular times, including on 10 March 2004. While teacher Ron, TAS Mary and TAS Su who each gave evidence, had suffered illness, the question of caution necessary to be adopted to their evidence, as discussed in State of New South Wales v Mannall [2005] NSWCA 367, must be approached in this case having in mind that under the defendant's systems, contemporaneous records were maintained, which recorded what had occurred. While the employees' conduct and their evidence was criticised in various ways in the defendant's case, it is convenient to observe at this point that I found each of them to be honest witnesses. Undoubtedly, their evidence, like that of other witnesses, was affected by the passage of time. Nevertheless, in resolving factual questions, the contemporaneous documents were able to shed light on the events in question. Thereby evidentiary contests were able to be resolved. 157 On 10 March 2004, teacher Ron and TAS Mary were working together in a General Education class in session 1. A detainee, TD, then aged 15 years, engaged in behaviour which resulted in teacher Ron and TAS Mary providing a level 2 behaviour report, after the class, as to what had occurred. The report was prepared closely after the events had occurred. The report was provided to A/P Amanda that morning, who added her comments. Copies went to the DJJ and were maintained at Putland, where they were available to the Principal and other staff. 158 Putland operated this reporting system, as a means of keeping a record of detainee misbehaviour; suggested punishment and steps taken as a result of inappropriate behaviour. It was this report which enabled DJJ staff to administer punishment to detainees in accordance with the provisions of the Children (Detention Centres) Act. The system in operation required staff to be released from class, in order to prepare these reports immediately after an incident. 159 In these proceedings, both teacher Ron and TAS Mary gave evidence largely consistent with their reports, as to what had transpired that morning, although, unsurprisingly, some three years later, there were some variations between the report and their evidence. What these reports did not detail was that there was no response to the duress alarms sounded. No A/P or DJJ staff responded and TD, the detainee, was able to return to class unsupervised, twice, once in the company of another detainee. That omission is not surprising. These reports were not concerned with issues of that kind. On the evidence, the failure of the alarm system was immediately brought to the attention of the acting duty A/P Amanda, by TAS Mary. TAS Mary and teacher Ron both also spoke to the Principal about that issue that day. They also sought to raise it in staff meetings that day and in following days. 160 There was also in evidence reports later prepared by Ms Koussa, as the result of an investigation undertaken after teacher Ron and TAS Mary made workers' compensation claims. Ms Koussa had interviewed teacher Ron, TAS Mary, TAS Su, a number of A/Ps and the Principal. Ms Koussa's report was also largely consistent with the evidence in these proceedings, as to the events of 10 March. TAS Mary and teacher Ron were later treated and interviewed by a number of medical practitioners, to whom they each gave accounts as to what had transpired at Putland in March 2004, prior to their injuries. Again, the details of these accounts, as recorded by the relevant medical practitioner, departed somewhat from accounts given at other times. Nothing much ultimately turned on this, given contemporaneously produced records, maintained by the defendant in accordance with its systems. 161 The level 2 behaviour report, with the applicable statutory scheme, provided: ANTECEDENT EVENTS What led up to this behaviour? TD came to class demanding to know his points from yesterday presumable he was annoyed by his early bed. I agreed to discuss his points after first bell. He was unhappy with this but contented himself with calling me a 'fucking cunt.' I warned him this was unacceptable and after that he continued swearing at me from across the table. LEVEL 1 STRATEGIES In class proactive strategies and consequences: I tried to point out to TD the need to get on with the set work. He swore at me again. Mary then tried to help him settle down by soothing words. (This did not work. He did his diary for about 2 minutes then started again. I called AP Amanda about 9.50AM to talk with TD outside. He then left. LEVEL 2 BEHAVIOUR Description of behaviour: During session 1 on Wednesday 10.3. TD 1) repeatedly used the words, fuck, bastard cunt. 2) Called a gronk, a fat bastard, smelly etc 3) re-entered room sat next to me and demanded to discuss points in a very threatening way. 4) I moved away from him he followed me and aggressively ripped my points score from my hand. I thought he was going to hit me so I pressed my buzzer. 5) Mary asked him to go back out, he left swearing at me. 6) He returned a very short time later, with another boy, came into the room swearing again. I pressed my buzzer when TD re entered the room. IN CLASS RESPONSE: How did staff deal with this behaviour? How did the student respond? We tried to calm TD down, get him distracted with the work, position him with the rest of the class, and reinforce strong guidelines. The student ignored all this, continued with his behaviour and repeatedly pushed the table into me, till I insisted he move to the next table. EXPECTATIONS OF EXECUTIVE Proposed outcomes of executive intervention: TD has frightened, intimidated and abused me, I feel he would be better out of school till he is ready to pursue educational goals. I would not feel safe with him class. OTHER STAFF MEMBER Name: Mary Comment: TD was extremely non-compliant from the onset of session 1. He was very agitated and resentful due to the low pints that he earned the previous day. He was extremely rude and insulting to Ron whom he 'blamed' for his early bed time. He displayed his feelings in several ways. e.g. the use of bad language either said out loud or mumbled, using equipment to antagonise the teacher (pushing the table, towards Ron's stomach). When he was taken out by Amanda (DAP) after the 1st bell, he re-entered the room to demand his points. He was threatening to Ron both physically and verbally. He left and then returned when Ron and I were still in room. I stood between him and Ron and SS stood in doorway. We both felt very threatened. 162 A/P Amanda was the acting A/P on duty that day. Her comments on the report were: During session 1 TD was non compliant. He failed to complete set tasks. Repeatedly used inappropriate language that was directed at the teacher. "Fat bastard, Fucking cunt" etc. TD also pushed the classroom table on several occasions towards the teachers stomach. After TD was taken from the classroom he returned in a very aggressive manner to persue(sic) his points discussion with his teacher. TD continued to swear, ripped the teachers paperwork from his hands, was physically invading the teachers space. 163 She also reported: TD has been unsettled in class for a few days and school points have reflected. TD has been spoken to about appropriate behaviour on numerous occasions but still chooses not to comply. TD was removed from the classroom as a result of his continued behaviours. 164 Teacher Ron gave Ms Koussa an account of these events, during her investigation of the cause of the psychological injuries which he had sustained. Ms Koussa described his account in her report as: Teacher Ron reported that the first critical incident occurred during session 1 on Wednesday, 10 March, 2004. One of Teacher Ron's regular students (TD.) walked into class in an unusually agitated and aggressive state. He began to push tables around and pushed a table into Teacher Ron's stomach. Teacher Ron reported that, TD was also verbally abusive and was calling him names like "fat cunt", "fucking prick", "fucking' scumbag" as well as directly threatening Teacher Ron by saying "I'm going to do you". Teacher Ron said that at no time did TD abuse TAS Mary. Teacher Ron indicated that between himself and TAS Mary they were able to keep the class going for approximately three-quarters of the session despite TD's behaviour, however, at this point TD got up and started pushing chairs. According to Teacher Ron, TD then ran at Teacher Ron's table at which point Teacher Ron pressed the duress alarm, but that no juvenile justice officers responded. Teacher Ron said that he thought TD was "going to hurt me" but he did not, he just grabbed a piece of paper off my table. Teacher Ron said that TAS Mary also pressed her duress alarm but that once again the juvenile justice officers did not respond. Teacher Ron said that at first-bell, one of the Assistant Principals (Ms Amanda B) came to the classroom and when she saw TD was being disruptive, she took him out of the room. Teacher Ron said that it is common practice at the School for a first-bell to ring five minutes before the end of each session so that teachers can allocate 'points' for good behaviour to each student. The 'points system' is part of an incentive scheme were 'points' can earn students the privilege of watching an extra video, or the right to stay up a couple of hours after regular bedtime, and so on. However, TD returned to te(sic) classroom shouting "I want my fucking points". Teacher Ron said that he pressed his duress alarm again but that once again none of the juvenile justice officers responded. Teacher Ron said that TD had received no 'points' in class but that he did not know whether to tell him this or to just give him some points He said that at this stage TAS Mary told TD to go and enjoy his break and not worry about the points. Teacher Ron said that that he had been worried because TD has a history of using violent means to collect money; he had worked as a debt collector for a drug addict prior to his detention. Teacher Ron also said that he did not feel he could leave the classroom because he did not want to leave TAS Mary on her own. Teacher Ron said that at first-bell he heard something on the school radio (all staff wear radio headsets as a security measure) about someone escaping. Teacher Ron said that not long after this session ended, he learned that three students were on the roof escaping and that was why none of the juvenile justice officers had responded to their duress calls. Teacher Ron also said that he found out that two fights were to be started at either end of the school as a decoy plan to assist the escapees. Teacher Ron said that he also found out that day that chairs were being flung at classroom windows by other students in other classrooms and that the atmosphere had been generally disruptive. Teacher Ron indicated that for the rest of the day the school was shut down and all the focus was on the escape attempt. Teacher Ron said that one student was caught but that the other two students had managed to escape. He also said that the Principal, Ms Kate W., had also run out of the school to help find the escapees, but that he felt she should have stayed in the school to deal with the turmoil that the escape attempt had created. Teacher Ron said that the school atmosphere was "electric" for days after this event but that no students attended school on Thursday, 11 March and Friday, 12 March, 2004. Teacher Ron said that he had never attended any crisis training that would have helped him know how to deal with a situation like this and "we [Teacher Ron and TAS Mary] were left not knowing what to do". After the escape, the area of the school from which two of the three students had successfully escaped was closed down for security purposes. Teacher Ron said that this further reduced the number of classrooms available for teaching as the school was being refurbished and a number of the classrooms were already unavailable due to the refurbishment. Teacher Ron said that the teachers objected to having joint classes as it increased risk due to having increased student numbers as well as one door from which to exit and enter. Teacher Ron said that these issues combined with a couple of other factors led to the second critical incident. 165 Ms Koussa recorded TAS Mary's account of what had happened on 10 March as: TAS Mary explained that she had gone off work on Monday in(sic) 15 March, 2004 after a critical incident in which a disruptive and verbally abusive student had also become physically violent and that she had been scared. TAS Mary said that she had already been worried about her physical safety in the classroom at Putland ETU following a critical incident the previous week (Wednesday 10 March 2004) where the(sic) both she and Teacher Ron. (the teacher for whom she is teacher's aide) pressed the duress alarm three times (between them) during a teaching session, with no response from the youth officers. She explained that on 10 March, 2004 there had been an escape attempt by three students at Putland ETU, two of whom had been successful in their escape. On that day, she said one student (TD) had been particularly disruptive and had become verbally and physically abusive towards Teacher Ron. She related that later they understood that the level of disruption was quite possibly to do with the diverting attention away from the escape attempt. Nevertheless, youth officers were not available to respond to the duress alarm because they were busy with the escape attempt. TAS Mary reported that the night of 10 March , 2004 she dreamt that the Asian student's [T] nails were steel and that "he was ripping my throat out". She reported that all of the following day she felt as if she were in "a daze". TAS Mary reported that that night (10 March, 2004) she had also become preoccupied and distressed about two critical incidents that had occurred in February and March of the previous year. 166 A/P Amanda was not nominated by the Principal to speak to Ms Koussa about TAS Mary or teacher Ron, so there was no account in Ms Koussa report, as to what she understood had occurred that day. 167 Evidence was called about these matters from TAS Mary, teacher Ron and A/P Amanda. The defendant made a detailed analysis of the various evidence, in order to suggest that there was confusion and inconsistency in teacher Ron and TAS Mary's evidence, about what had occurred, particularly in relation to the time TD was removed from, and returned to class and whether TAS Mary used her duress alarm. The initial report itself contained certain discrepancies between teacher Ron and TAS Mary's accounts as to timing. There were also some departures between what various documents, including notes taken by medical professors, recorded and the details of what witnesses recollected much later, understandably, given the lapse of time and the circumstances under which the various witnesses were called to give their evidence. Such departures are not surprising, especially in the case of doctors' notes, because they reflect a record of answers given to questions asked. Those difficulties did not give rise to problems of the kind asserted by the defendant, but I will return to deal with them. 168 While A/P Amanda had very little recollection, when giving her evidence, of what had occurred that day with TD, she gave evidence that it had been a very busy morning, so that she had had to call for assistance from the Principal. She also gave evidence that there was some delay in receiving this report from teacher Ron and TAS Mary. The time elapsed was from when they left class not long after the commencement of recess, at 10.00 am and the receipt of the report, noted by A/P Amanda as being at 12.08 pm. 169 On TAS Mary's account, she was in the quad when a fight broke out, which DJJ officer reports into the incident, indicated occurred at about 10.06 am. She had gone there to speak to A/P Amanda, as to why no assistance had been sent in response to the duress alarms earlier sounded. The escape then occurred and there was considerable evidence as to how Putland's normal routines were then disrupted, which perhaps accounts for the time it took teacher Ron and TAS Mary to provide their report as to TD, as does TAS Mary's account of her subsequent state. There were no further classes at Putland after recess. School did not resume until Friday, 12 March. 170 The evidence as to the events of 10 March did lead to a particular difficulty, which it is convenient to deal with at this point. Ms Koussa's report noted that the Principal: ... denied knowledge of the incident that took place on Thursday, 10 March, 2004. Ms Kate W. reported that she was not aware that a student had become abusive in teacher Ron's classroom on that day or that the duress alarm had been pressed on three separate occasions within that session and that no one had responded. Ms Kate W. said that she will need to investigate this matter further. 171 The Principal's evidence in these proceedings departed from this report, it being her evidence that she was aware of what had occurred, having discussed it that day with teacher Ron. The Principal's evidence also departed in various respects from the evidence of various other witnesses, including that of teacher Ron and TAS Mary, as well as from what she had earlier told Ms Koussa, even though she explained that she would have had a better recollection of the events in question, at the time that she spoke to Ms Koussa, than when giving her evidence in these proceedings. It will be necessary to deal further with this evidence in relation to the 10 March charge. It must be observed at this point, however, that as a result of my consideration of these conflicts, I found it impossible to prefer the evidence of the Principal to that of teacher Ron and TAS Mary, in the event of conflict. 172 On the evidence in these proceedings, the Principal never investigated what occurred to them on 10 March and it was not otherwise investigated by the DET or the DJJ. The required serious incident report was never produced, or dealt with, by any A/P, the Principal, or the DET District Office, to whom the report was required to be sent. The only serious incident report produced that day by the Principal, concerned the escape. That there should have been a report in relation to TD's behaviour in class that day, cannot be doubted, given that what occurred that day involved an assault on teacher Ron, as the Principal on her own evidence in these proceedings, advised him. TAS Mary interposed herself, to defend teacher Ron. TD was able to return twice, unaccompanied to class, to threaten the staff again, in the company of another detainee on the second occasion, with a failure of the duress alarm system, when help was called for. 173 As a result, teacher Ron and TAS Mary were left to fend for themselves, when TD threatened them repeatedly. 174 That the Principal later repeatedly refused to deal with the matter of the duress alarm failure and the other failures of the defendant's practical system, despite plainly having an understanding of the seriousness of what occurred to teacher Ron, on her own evidence, was not explained. That situation made more credible the evidence of other witnesses of ongoing staff concerns about the Principal's attitude and inaction in relation to safety concerns. In her evidence, the Principal could recollect little about these events. It was, for example, A/P Rebecca's evidence that when she sought to pursue the question of safety with the Principal after the events of 10 March, which, like teacher Ron and TAS Mary, members of her supervision group, she also viewed as serious, her approach was dismissed by the Principal with the response 'Heaven help us when something serious happens'. 175 There was also an issue between the parties as to the circumstances in which the Principal left the school on 10 March; why she had become involved in the pursuit of the escaped detainees and whether that should have occurred. There were no written policies in place at that time as to how such incidents should be dealt with by Putland staff, even though there had been escape attempts in the past and a DJJ policy required that there be a specific plan in place at Cobham to deal with such situations. 176 On the evidence, before this escape, no drills had been conducted in how DET staff should respond to an escape and there was no DET policy which dealt with such a situation. 177 DET staff who remained at school assisted DJJ staff conduct a head count and return detainees to their units. This took about 20 minutes. There was no school during the rest of that day, nor the following. Detainees returned to classes at Putland on Friday, 12 March. 178 TAS Mary attempted to discuss her concerns about the failure of the duress alarm system when she and teacher Ron were confronted by TD, with the Principal later on 10 March, after her return to school and over the following days. Those attempts were not successful. The Principal's evidence was that what happened with TD in teacher Ron and TAS Mary's class on 10 March, was never investigated by the DET, despite these approaches. She agreed that she refused to allow any discussion of what had occurred. What occurred at Putland on 15 March, especially so far as TAS Mary and TAS Su were concerned? 179 On Monday, 15 March there was another difficulty in a class being conducted by teacher Ron and TAS Mary. The usual operation of Putland had been affected for some time by the ongoing building work. At an earlier stage, classes had been combined, so that more than six boys and two staff members were located together in one classroom, with two different programmes then being delivered to the two groups of detainees. There had been safety concerns raised about this arrangement by staff and this system had been discontinued. After the escape, the number of classrooms available at Putland was further reduced. Because it was judged not to be safe to combine classes, as had previously occurred, after the escape a different system was introduced. This involved students only attending two, rather than four teaching sessions each day. 180 On 15 March, under this system, teacher Ron and TAS Mary taught their normal General Education class in the first two sessions and then took a different group of detainees, who were enrolled in an Impact class, for a General Education class. They were assisted in the classroom by a second TAS, TAS Pam, available because of the reduced number of classes being conducted that day. 181 One of the detainees in the second group was BH, then aged 17. Over the course of the class, four detainees were removed, they being dissatisfied with the class, which was different to that which they normally undertook. Those detainees were not prepared to participate in the class. This had consequences for those detainees under the points system. Thereby they could not earn the maximum 60 points available to be earned in school, if they had remained and participated in the class. Only BH and one other detainee remained. 182 Again, there were contemporaneous records of what occurred. Teacher Ron, TAS Mary and TAS Pam provided a level 2 incident report in relation to this incident. A/P Sue also provided a report. The report into the incident completed that day, again recorded what occurred. It will be necessary, however, later to return to deal with various factual contests. The report provided: ANTECEDENT EVENTS What led up to this behaviour? BH left his seat to the room despite being asked to remain in the room on his seat before going to the toilet. He was told Mary would organise that and he was to remain in position and that leaving the room incurred a 5 point penalty. He ignored all of this. Left the class and loudly whistled for a youth worker for the toilet,. He remained out the classroom for approximately 15 minutes, talking to AP Sue and Youth Workers. This he arranged himself. LEVEL 1 STRATEGIES In class proactive strategies and consequences: points are earned, and all this was clearly and unambiguously stated at the beginning of session 3. We engaged him and encouraged him to complete his set work, he made a good effort at the work so was complimented for this. The first time he left the room he was reminded of our incentive (system) rule reminders were stated. When he left the room to look at library books in the display boxes. LEVEL 2 BEHAVIOUR Description of behaviour: (BH returned to class after being taken out by AP - Rebecca, when I asked him if he had permission to return, he started shouting out/demanding his points, I told him he earned points so I record what he earns. He, BH continued shouting he threatened to make it worth his while if he was getting an early bed! He then banged the table, continued shouting, stood up, picked up the chair he was sitting on, and threw the chair with some force in my direction. Then he trashed the library books on the whiteboard side of the room, he tried to push over the book shelve(sic) and started to push the books on to the floor. Then the youth officer David tried to restrain BH, then Shane tried to help him, and finally after more trashing of the classroom books he was finally removed from the class. IN CLASS RESPONSE How did staff deal with this behaviour? How did the student respond? We tried to encourage him to earn points, complete his set work, and engage him in conversation about his trip to the Lebanon last year. I moved the pencils away from him, and suggested to Pam she get out when BH started getting violent. AP Rebecca requested that he leave the room with her, which he did. Then he returned to the room without permission. EXPECTATIONS OF EXECUTIVE Proposed outcomes of executive intervention: I wanted him removed from the class to ensure the safety of all the others in the room, and also for the sake of one library resources. OTHER STAFF MEMBER Name: Pam Comment: BH was very angry about his points. He threw a chair at Ron and ? the books off the selfes(sic). I agree with what has been written above. Pam. Mary Ron has accurately reported what happened. BH, from the outset, tried to "do his own thing" and resented Ron reminding him of the School Rules. He kept demanding to know his points and made it clear that, there would be bad outcomes if he didn't get full points. 183 A/P Sue's report provided: PUTLAND ETU LEVEL 2 BEHAVIOUR EXECUTIVE INTERVENTION Executive member: Sue Report Received: Time: 12.15 Date: 15/3/04 INTERVENTION Strategies and outcomes: § AP Rebecca removed BH from the room - he returned (AP Rebecca had indicated to YO David to stay nearby). § Personal Alarms activated - assistance called § Youth Officers removed BH from room and struggle continued outside room with several YOs and VMs and VCs. RECOMMENDATION Level 3 Strategy YES Confinement. ISSUES Follow up required re student: Return to ETU by application and completion of Focus. OUTCOMES: Date: 15/3/04. § DET serious incident advice completed. § Confinement 12 Hours. § Returned to ETU by Application and Completion of Focus. § Teacher Ron, TAS Mary, TAS Pam supported by AP Rebecca and AP Sue. Staff referred to EAP and School Counsellor § Register of injuries completed for staff. § Police contacted by JJ staff - Y.O. staff charging BH § Teacher Ron to charge 184 The Principal said in her serious incident report about this event that: Putland ETU School Name School Phone **** **** Principal Kate W District Penrith Superintendent & Phone David Phipps **** **** Date of Incident 15.3.04 Time of Incident 12.45 pm Key Issue1 Exposure of staff to violent incident. Enter a brief description of the incident During points negotiation at the completion of the lesson, a student became aggressive towards ETU staff. He threw a chair across the room, narrowly missing staff and hitting computers. He knocked students' work and a large number of library books to the flor(sic). He attempted to knock over several library shelves, dislodging their contents to the floor. Youth officers intervened and attempted to defuse the situation. The student's behaviour escalated outside the classroom. He allegedly assaulted DJJ staff and use of force and handcuffing procedures were implemented. A number of ETU staff witnessed the incident including the student's violent behaviour towards DJJ staff and his eventual restraint. Describe action taken · Class teacher completed ETU behaviour report · AP completed DJJ minor misbehaviour report. Opportunities for debriefing and support offered to staff including staff welfare officer and EAP. · School counsellor notified and attending ETU today to support staff. · Options for teacher to charge student discussed. One of the teachers' aides (special) present in the classroom reported distress and indicated that she would be absent today for which would submit a workers' compensation claim. · Accident and notification of injury lodged. DJJ personnel contacted police with the intention of charging detainee with assault on three DJJ staff. · DJJ submitted successful submission for detainee's reclassification and transfer. · Detainee has been transferred to Kariong JJC. 1 The key issue indicates the impact on the system which may be different from the subject matter of the incident. 185 Ms Koussa's report in relation to teacher Ron noted that: Teacher Ron reported that the second critical incident took place on Monday, 15 March, 2004. The teachers were asked to take joint classes. He said that that morning in the teacher's meeting, teachers had objected to this sort of management. Teacher Ron reported that he had his normal classes for the first and second sessions and that for the third session he and TAS Mary were moved from his usual classroom and allocated a class of students with whom they were not familiar and whom they had not taught. Teacher Ron also said that he and TAS Mary were allocated an extra teacher's Aid for this session. He stated that as expected, the class was unsettled and he and TAS Mary decided to give the students and(sic) easy lesson that was a favourite with his other students. Of the six students that were in the classroom, two had to be removed because they would not do the work. Teacher Ron said that at this point one of the students (BH, a 19 year old student of Lebanese origin) got up and began circulating the room and walked around Teacher Ron and TAS Mary and touched them on the back. Teacher Ron said that this touch felt as if they were being 'marked'. He stated that at first-bell, Ms Rebecca B., Assistant Principal came in to the classroom, BH said something to her and she took him out of the classroom. Teacher Ron said that there were three students left and that they were settling down to allocate 'points' when BH came back screaming "I want my fucking points", "that's your fucking job you prick" and began banging on Teacher Ron's table. Teacher Ron said that TAS Mary observed that BH was going to cause trouble when he came back into the classroom and that she pressed her duress alarm. Teacher Ron said that at this stage he was sitting at his desk with his back to the wall. The second bell, signalling the end of session three, rang and Teacher Ron told TAS Pam (second teacher's Aid) to "get out of the room". Other students and teachers exiting their classrooms started coming into Teacher Ron's classroom to observe what the commotion was. Teacher Ron said he tried to stay clam and pacify BH but that BH picked up a chair and threw it at Teacher Ron. Teacher Ron said that the chair flew past his forehead and smashed into the wall behind him. BH then began to demolish the bookcases as he walked around the classroom knocking books off them then glaring at Teacher Ron and shouting "fucking points". By this stage, Ms Rebecca B., Assistant Principal; Ms Kate W., Principal; Ms Amanda B., Acting Assistant Principal; three juvenile justice officers; Teacher Ron., TAS Mary and TAS Pam., were all in the room trying to reason with BH. Finally, BH had to be handcuffed to be restrained. Teacher Ron said that he received feedback from almost all the witnesses saying that he had handled the situation very well ad(sic) that there was nothing he could have done to settle BH. Teacher Ron reported that TAS Mary was so distressed that she went home immediately after this incident and that Teacher Ron followed her in his car to make sure that she arrived home safely. Teacher Ron said that TAS Mary had taught at Putland School for 12 years but that as far as he knew she had not returned to the School since this incident. Teacher Ron reported that two of the juvenile justice officers had BH charged with assault and had asked Teacher Ron if he too wanted the police to charge BH. Teacher Ron said that this matter is still pending. Teacher Ron said that following this incident, arrangements were made to have BH transferred to another Detention Centre and that this made things even more difficult for him in the days to come. Teacher Ron said that the Lebanese students who were friends with BH blamed Teacher Ron for BH's transfer to another detention centre and that he was verbally abused and threatened by some of the Lebanese students saying "fuck you" and "I'll get you". Teacher Ron said that over the following two weeks he tried to "solider on" and that reduced class sizes due to a number of students not attending helped for a while, but that his sleep became disrupted and that "I did not feel my usual self'. Teacher Ron said that Ms Rebecca B. had also told him he did not seem his usual self. His partner had also told him the same thing and after that he made an appointment to see Dr Walsh on 29 March, 2004. 186 Ms Koussa's report in relation to TAS Mary noted that: In describing the day she went off work TAS Mary reported that the ETU was down to three classrooms due to the escape attempt on the previous Wednesday (10 March, 2004). As a result of the escape attempt, she explained that four classrooms had been shut down as they had been security breached by the escapees. TAS Mary reported that teaching sessions one and two on Monday, 15 March 2004 were in the same classroom and with the same students as usual but that the usual students were replaced with new students for sessions three and four. TAS Mary reported that their usual students had been settled because they "knew us" but that generally, none of the students like attending class for sessions three and four. She stated that it was Teacher Ron's first dealing with those new students and that the students had been resentful on the previous Friday about the class room changeovers that had occurred on that day but that despite their protests the same changeovers had been repeated on Monday 15 March 2004. TAS Mary said that the six new students came in saying "what the fuck are we coming in here for?" in reference to the classroom changeovers. Due to the fact that the most disruptive student (BH) was of Lebanese origin, TAS Mary said that Teacher Ron. had decided to present geography with a focus of the Middle East so as to interest the disruptive student. She reported that this particular student (BH) was very arrogant, confident and always expected to get things his own way and not to be challenged, she said that he had an air of "I am in command". TAS Mary said that Teacher Ron. managed to get BH engaged in the Middle East studies; however, two other students had to be removed from the classroom as they refused to "do their schoolwork". TAS Mary said that the trouble with BH started to escalate approximately 15 minutes into the session when he demanded to go to the toilet. TAS Mary reported that BH did not wait for either Teacher Ron. or herself to ask a youth worker if a bathroom was free (as was the usual practice) but that he proceeded to walk out of the classroom in a determined and threatening way against Teacher Ron's protests. She also reported that BH did not come straight back to the classroom as he is meant to do but that he approached Ms Sue G. an Assistant Principal in the quadrangle immediately outside his classroom and engaged her in conversation. TAS Mary said that she saw this and called BH to come back to the classroom; he did so; did a couple of more minutes of work and then proceeded to demand to know what points he would receive from session three. She explained that students receive points for good behaviour that they can swap for privileges later of in the evening at the detention centre. TAS Mary explained that by this stage it was approximately 35 minutes into the usual 1 ¼ hour teaching session and that the Assistant Principal, Ms Rebecca B. was called on the radio to come and take BH out of the classroom for being disruptive. Ms Rebecca B. removed to BH from class and returned him again after approximately 10 minutes but that she remained in the classroom with him. Due to his behaviour, TAS Mary reported that Ms Rebecca B. had asked a youth worker to wait outside the classroom for the rest of the session. TAS Mary said that BH did not settle: first he demanded "I what(sic) those books in the window"; then he attempted to leave the classroom again; then he commenced again with "I want my fucking points, tell me my fucking points". According to TAS Mary, Teacher Ron tried to explain to BH that he would tell him his points when he had finished with another student, but this was not good enough for BH. TAS Mary said that BH rose up out of his chair and shouted to Teacher Ron "are you going to take my fucking points way from me?" He than picked up the chair he was sitting on, stepped back, lifted the chair to shoulder height and threw the chair at Teacher Ron, just missing Teacher Ron's head. According to TAS Mary, BH then went across to the bookshelves and flung magazines off as he continued shouting about his points. She reported that the youth worker, who had been waiting outside of the classroom, had already come in to the classroom to assist but that a call had also been placed for more youth officers to attend. BH continued moving around the classroom demolishing the rest of the books off the bookcases. TAS Mary stated that she attempted to subdue one of the other students as she could see that he was considering joining in the trouble-making with BH. At this stage TAS Mary reported thinking: "what hope do we have if the youth officers cannot subdue him?" She said that she could see that if BH got past the youth officers, he would hurt her. She reported that eventually the youth officers were able to physically restrain BH and led him out of the classroom but that things got even worse outside and that BH physically assaulted the youth officers. TAS Mary stated that she remembers seeing blood on one of the youth officer's trousers but that she does not recall much else about the day and that she felt "spaced out". She reported that she completed the day at work but that Teacher Ron had had to follow her home in the car to make sure she arrived home safely and that when she got out of the car she felt as if she was "walking funny" (referring to feeling weak at the knees). TAS Mary reported that she did not return to work after Monday 15 March 2004. TAS Mary claimed that she had tried to raise her concerns about staff safety in the ETU with the principal, Ms Kate W., but that each time she was made to feel as if she was exaggerating and reported that when she had tried to raise these issues in staff meetings, Ms Kate W. had "cut her off". TAS Mary reported that she does not feel able to return to Putland ETU despite having worked there for approximately 12 years. TAS Mary also stated that her colleague, Teacher Ron. had also gone off work following the incidents on Wednesday, 10 March, 2004 and Monday, 15 March, 2004. 187 Ms Koussa noted A/P Rebecca as saying: In describing the incident on 15 March 2004 that had led TAS Mary to go off work Ms Rebecca B. stated that she was the Assistant Principal responsible for the smooth running of the school program that day; which meant that all communications regarding any issue about the ETU had to be communicated to her. Ms Rebecca B. reported that teacher Ron had called for her assistance because a student (BH) had gone in and out of the classroom and had been misbehaving. Ms Rebecca B. confirmed that she had taken BH out of the classroom and returned him approximately 10 minutes later but that she had remained with BH in the classroom. She said that despite this he continued to be disruptive and demanded to know his points. Ms Rebecca B. said that when Teacher Ron. had not responded to BH's demands immediately, BH had stood up and thrown a chair at Teacher Ron. and proceeded to "trash the room". Ms Rebecca B. stated that the duress alarm had been pressed and that youth officers had responded but that it took a lot to restrain BH as he was throwing books off the bookshelves and attempted to pull down the bookshelves themselves. Ms Rebecca B. stated that BH continued to be violent and assaulted youth officers out in the courtyard. She related that since this incident, BH had been transferred from the Cobham Juvenile Justice Centre and that he never returned to the classroom after that. She stated that TAS Mary had finished the day at work but that she had not returned to work since that incident on 15 March 2004. Ms Rebecca B. also stated that another staff member, Teacher Ron. had gone off work, due to stress following the two incidents on Wednesday, 10 March and Monday, 15 March, 2004 respectively. When asked about the incidents in February and March, 2003, the previous year, Ms Rebecca B. confirmed that she knew about the incident in March 2003 where one student had assaulted another student and injured him whilst under TAS Mary's supervision and said that TAS Mary had been very upset after this incident. However, she stated that she could not remember the incident in February 2003. Ms Rebecca B. said that there are many incidents at Putland ETU but that in her opinion the incidents in March 2003 and on 10 and 15 March, 2004 respectively, were extreme. 188 Ms Koussa noted the Principal as saying that: Ms Kate W. said that TAS Mary went off work on Monday 15 March, 2004 after BH (a student) had misbehaved. In describing the incident, Ms Kate W. said that four staff members were already in the classroom when she attended after the alarm was raised. Ms Kate W. witnessed that BH had pushed books onto the floor and said that it had been reported to hear that he had thrown a chair toward Teacher Ron. but that she had not witnessed this. Ms Kate W. reported that she was present when BH was removed by youth officers from the classroom and reported that BH had continued misbehaving in the courtyard and she believed that he had assaulted the youth officers further there. Ms Kate W. related that following the incident, TAS Mary had wanted to stay in the classroom and try and clean up the mess but that Ms Kate W. had insisted that TAS Mary, Teacher Ron. and another teacher's aide who had been present at the time, leave the classroom. Ms Kate W. acknowledged that she could see TAS Mary was very upset after this incident an offered her the use of the Employee Assistance Program (EAP). Ms Kate W. related that TAS Mary had not returned to work after 15 March, 2004. When asked as to what she believed had led TAS Mary to go off work, Ms Kate W. responded that she believed TAS Mary had gone off work primarily due to the incident with BH on the 15 March 2004 but reiterated that TAS Mary may have overreacted as there had not been many critical incidents in the past and thus she was not used to things going wrong. Ms Kate W. stated that she had not seen any signe of distress in TAS Mary prior to the incident except for in 2002 after her surgery where Ms Kate W. had observed TAS Mary to be teary but that she had returned to her usual self not long after. Ms Kate W. reiterated that "she [TAS Mary] does a good job and is in valuable here and if she wants to come back I'd welcome her with open arms". However, Ms Kate W. also said that she believed TAS Mary had been at Putland ETU a long time and that it may be overdue for TAS Mary to look for work elsewhere for her own well-being. 189 BH was later charged with assaulting a DJJ officer. He was not charged with assaulting teacher Ron. He was transferred to another detention centre, Kariong, where more serious offenders were then remanded. 190 On 15 March, both teacher Ron and TAS Mary were referred to the school counsellor and the DET's Employee Assistance Programme. They each also sought medical attention. TAS Mary did not ever return to Putland. Teacher Ron went on sick leave some days later. He also never returned. 191 The evidence of teacher Ron, TAS Mary and other witnesses, largely corroborated their earlier written accounts of what had occurred that day. As one would expect, given that the evidence was given some years later and that each witness gave an account of what they had observed and recollected, there were some differences as to what had occurred, which it is unnecessary to deal with here. What occurred at Putland between 10 and 17 March, especially so far as TAS Mary and TAS Su were concerned? 192 What occurred on 10 March has earlier been recounted. On 11 March there was no school. The staff met, including TAS Mary and TAS Su, but the Principal did not permit them to discuss the safety issues arising from the events of the previous day, either in relation to the escape, or the events in teacher Ron and TAS Mary's class. 193 On 12 March, classes were conducted in the morning. TAS Mary and TAS Su were both at work. Teacher Ron was not. The new procedures described in relation to the classes which occurred on 15 March began. There was no evidence that any risk assessment was undertaken, in relation to this system. Jayne M's evidence was that she was not aware of any such assessment. TAS Mary worked that day with the Impact class in which BH was enrolled. 194 There were no classes in the afternoon. At the usual Friday afternoon weekly meetings, there was still no discussion permitted of the events of 10 March, and no investigation of how the safety system had come to fail. 195 The events of 15 March have earlier been described. Some witnesses described the atmosphere at Putland after the escape as 'electric', with detainees generally agitated. The situation which developed in the quad with BH, was being observed by other DET staff, including TAS Su. This was unsurprising, given how classrooms were configured around the quad, the noise and commotion which BH was making and the difficulties DJJ staff were having in controlling him. On the evidence, it seems to me that this situation can only have reinforced to DET staff who witnessed what occurred, including TAS Mary and TAS Su, the nature of the serious risks to which they were being subjected in their employment at Putland; concerns which the Principal had simply dismissed out of hand, when staff had repeatedly sought to raise their safety with her, as recently as the preceding Friday. That very morning, despite DJJ advice that all detainees required very, very close supervision ('vvcs') classes went ahead on a new basis, without additional controls. 196 TAS Su's evidence was that she was very affected by what she observed. There is no reason to doubt that evidence. TAS Mary took sick leave from 15 March and did not return to Putland. Given even the Principal's description of TAS Mary, her attitude and her approach to her work, that she was severely affected by what occurred that day, cannot be doubted. 197 On 16 March, TAS Mary was absent from school. She never returned to Putland. Teacher Ron and TAS Su were both at work. 198 On 17 March, TAS Su was working in class when another fight broke out between detainees. While she does not appear to have been at personal risk of injury that day, it seems that this was the final straw for her, as it was described in the evidence. Thereafter she was simply unable to cope any longer, despite further attempts to do so. Her injury prevented that attempt succeeding and she was directed to seek medical attention. Given what had transpired since 10 March and TAS Su's undoubted concerns beforehand, for her safety at work, that this was a traumatising event, cannot be doubted on the evidence. 199 On 17 March, TAS Su was assisting teacher Mauro in a class. She herself had to use her duress alarm to call for assistance, when there was an altercation between two detainees. DJJ staff were called and responded to deal with those detainees. TAS Su was removed from class and later helped to prepare an incident report into the incident. It provided: ANTECEDENT EVENTS What led up to this behaviour: KN returned to class from confinement and was stressed. He informed Mauro that he felt too stressed to concentrate on his work. Mauro was watching him carefully scribbling on a piece of paper. At this point (J) started calling KN dumb. Mauro asked (J) several times to stop his comments but he continued and invited KN to fight. "Come on then do you want a go?" (J) said. LEVEL 1 STRATEGIES In class proactive strategies and consequences: The rest of the class was told to keep out of the verbal altercation and to continue with their work. Staff tried to calm KN and (J) but were unsuccessful in their attempts. LEVEL 2 BEHAVIOUR Description of behaviour: (J) continued to call KN dumb and kept on inviting KN to fight. "Do you want to have a go then? KN replied "Yes" and both boys got out of their seats and stood up, started to fight. Both boys punches connected with (J) being the more aggressive and effective, landing several punches on KN's face. IN CLASS RESPONSE How did staff deal with this behaviour? How did the student respond? Staff appealed to both boys to stop fighting and pressed the alarms. This event took place over a very short time span. Students continued to fight. EXPECTATIONS OF EXECUTIVE Proposed outcomes of executive intervention: Confinement for both boys but (J) was the instigator. OTHER STAFF MEMBER Name: Mauro (Teacher) Comment: AS OVERLEAF TAS Su. I agree with this report PUTLAND ETU LEVEL 2 BEHAVIOUR EXECUTIVE INTERVENTION Executive member: Sue Report Received: Time: 11am Date: 17/3/04 INTERVENTION Strategies and outcomes: § KN removed from classroom to segregation § Level 2 behaviour report completed by staff RECOMMENDATION Level 3 Strategy YES § MMB completed § Confinement 3 hrs. ISSUES Follow up required re student: Interview prior to return to school with DAP AP on 18/3/04 OUTCOMES: Date: 19/3/04. § staff relieved from class to construct reports § all relevant OHS paperwork completed § staff supported by supervisor & DAP AP and colleagues, referred to EAPs 200 The account which TAS Su gave to Ms Koussa was: In describing the circumstances at Putland ETU prior to TAS Su going off work on 17 March 2004 and again on 24 March, 2004 she said "Before I went off stressed, people [staff at Putland ETU] were dropping like flies, staff were getting assaulted". TAS Su reported a number of critical incidents in which either staff or students at Putland ETU had been physically assaulted and hurt, or where the threat of being physically assaulted had been very real. She mentioned a fight she had witnesses during a Distance Education teacher session in March 2003 that had taken place between two students and that had resulted in one student sustaining a broken nose and two black eyes; "there was blood everywhere". TAS Su reported that in early March 2004, they had had a bomb scare at Putland ETU, in which all staff and students were evacuated from the facility; on 10 March, 2004 there had been an escape attempt in which two students escaped and one was caught. She had also learnt that on the same day as the escape, a student in one of the classrooms had become verbally and physically violent toward his teacher Teacher Ron, and that both Teacher Ron and his Teacher's Aide, TAS Mary had pressed the duress alarm but that youth officers had not responded to their call. TAS Su also described a situation on 15 March 2004, in which a student, BH had become verbally and physically violent in class and then "completely lost the plot" in the quadrangle when the youth officers had brought him out of the class. TAS Su said that she had witnessed BH in the courtyard, "I've never seen anybody that out of control, the noises he was making; the physical assault on the youth officers; they [youth officers] handcuffed him; it was awful." In describing her own circumstances, TAS Su explained that she had taken two days sick-leave following an incident on Wednesday, 17 March 2004, where a fight broke out between two students in a classroom in which she was Teacher's Aide Special. She reported that the fight had broken out in the second teaching session for the day at approximately 11 a.m. She stated that there was one Teacher and two Teacher's Aides in that classroom that day. "I can't remember what happened clearly. They'd [students] being needling each other, the kid next to me got up and they started punching each other." TAS Su related that she, the other Teacher's Aide and the Teacher had all pressed their duress alarms. She stated that the youth officers had come running, "but it seemed like they took forever". TAS Su said that there was no blood shed on that day and the fight had not gone on for long. TAS Su stated, "I remember sitting there shaking and I couldn't stop." She reported that Ms Sue G., Assistant Principal, had come into the classroom after the fight and tried to get support for the staff so that they could write their reports. "I went into the office after the incident to write the behaviour report but someone else wrote it for me. I sat there and couldn't go back class; I just sat there and picked a polystyrene cup to pieces." According to TAS Su, Ms Rebecca B., Assistant Principal, had tried to organise an appointment for TAS Su with her GP immediately following the incident but he was unable to see her at short notice. TAS Su reported that that evening after leaving the workplace on 17 March 2004 she had seen her GP and that he had given her two days sick-leave and that she had spent them lying on the lounge at home with the television on and without moving or eating. According to TAS Su, she returned to work on Monday 22 March 2004 but was not on classroom duty and could not remember what she did that day. She reported having two teaching sessions on Tuesday 23 March 2004 in which she spent the whole time with her hand on the duress alarm and afterwards had spoken to the school counsellor about feeling distressed. TAS Su stated that on Wednesday 24 March 2004 she had a further two sessions as Teacher's Aide special but once again had spent the entire time with her hand on the duress alarm. She related that she had spoken to Ms Rebecca B, Assistant Principal and also to Ms Julie Ryan at GIO as she no longer felt that work was a safe place for her but she did not understand why she had been feeling this way. TAS Su reported that Ms Julie Ryan had told her to go back and see her GP and that she had made an appointment to see him on the evening of 24 March 2004 and had not returned to work since. Psychological injury at work - what is 'occupational stress' and 'social support' and what was the expert evidence 201 Both parties called expert evidence. They each challenged the relevance of the experience of some of the other witnesses, as well as the basis of their various reports, which they each claimed were based on a version of the relevant facts, inconsistent with what the evidence had established and which misrepresented the facts. Various of the reports were also criticised as not complying with the requirements of the expert's code of conduct. 202 The expert evidence dealt particularly with two concepts, 'occupational stress' and 'social support'. Occupational stress 203 As earlier outlined, various of the defendant's policies were directed to preventing psychological injury at work. In evidence was an extensive range of literature which helped explain why it was that such policies had been developed, namely the increasing realisation, over time, that stressful experiences at work and the work environment itself, could contribute to psychological ill health or injury. That literature also explained why it was that in the 2001 Occupational Health and Safety Regulation, particular obligations in relation to psychological injures were introduced: 9 Employer to identify hazards (1) An employer must take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer's undertaking and that has the potential to harm the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both. (2) In particular (and without limiting the generality of subclause (1)), the employer must take reasonable care to identify hazards arising from: (a) the work premises, and (b) work practices, work systems and shift working arrangements (including hazardous processes, psychological hazards and fatigue related hazards), and ... (j) the potential for workplace violence. (3) An employer must ensure that effective procedures are in place, and are implemented, to identify hazards: ... (e) while work is being carried out, and (f) when new or additional information from an authoritative source relevant to the health or safety of the employees of the employer becomes available. 204 The term 'occupational stress', much used in the evidence, was described by Ms Knox Haly by reference to the term 'psychological injury' now defined in s 11A of the NSW Workers Compensation Act 1987, by reference to 'a psychological or psychiatric disorder, including the physiological effect of such a disorder on the nervous system', thus encompassing diagnostic categories of post traumatic stress disorder, major depression, adjustment disorders and various anxiety related clinical disorders. 205 The Premier's Department's Occupational Stress Hazard Identification and Risk Management Strategy, described the term in 2003, by reference to 'diagnosed physical, psychological, or psychiatric illness or disease which has been substantially caused or aggravated as the result of work circumstances'. Reference is also there made to disorders including anxiety, depression and other stress-related conditions. 206 In the DET's Occupational health, safety & injury management - a guide for the principal or manager, psychological hazards are identified as the most frequent and costly of workers compensation claims, explaining no doubt, why the policy was introduced. Social support 207 'Social support' was explained in the evidence as encompassing emotional support, provided to help an employee cope with a traumatic experience at work. Such support could be provided by colleagues, supervisors, friends, family or even medical practitioners and counselling services such as the defendant's EAP system. It also encompassed instrumental support, that is the practical means by which employers assisted employees to deal with traumatic experiences at work, which put them at risk of injury. Such support includes policies of the kind earlier described and practical measures such as radios, duress alarms and DJJ support, provided by an employer in a system of work. 208 In light of the expert evidence, it is not surprising that the defendant's paper policies and practices sought to ensure that social support was provided to its employees at work by supervisors, including the Principal, as a means of preventing and reducing occupational stress and resulting psychological injury at work. That approach was also consistent with the obligation imposed upon the defendant by the Regulation, which provides: 11 Employer to eliminate or control risks (1) Subject to subclause (2), an employer must eliminate any reasonably foreseeable risk to the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both, that arises from the conduct of the employer's undertaking. (2) If it is not reasonably practicable to eliminate the risk, the employer must control the risk. (3) An employer must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health and safety are properly used and maintained. 209 The defendant's approach was also consistent with research conducted by Professor Tennant, who wrote a paper on 'Work Related stress and depressive disorders' in 2001, which dealt with teachers, among other groups of workers. The Professor there commented in relation to 'moderating variables', that social support was a co-variable which could be either a potential moderator, or an independent risk variable, including in the case of poor social support at work. The support of a supervisor had been found to reduce the risk of depression, while support from a colleague did not. Professor Tennant observed: As in the literature generally, there remains conflict concerning social support as an independent risk factor for morbidity or as simply a moderator of the relation between stressors and psychological morbidity; the evidence more strongly supports the former. (at p701) 210 Professor Tennant concluded that occupational stress was of increasing importance in the workplace and that 'a range of adverse health outcomes have been identified but psychological disorders are significant because they occur frequently, are often unrecognised and can be accompanied by significant social morbidity; there are important implications for the lifestyle and health of employees and their families and there are medico-legal issues'. 211 While not referred to in Professor Tennant's article, the defendant's policies recognised that occupational stress was a matter which it needed to deal with at its workplaces, given its obligations under the OHS Act. The policies therefore strived to ensure that social support was provided to employees, as a means of helping control the risks which they were inevitably exposed to at Putland. What was at issue between the parties was the adequacy of the social support in fact provided at Putland and whether it was in fact undermined, so as to become inadequate, given the Principal's approach. That was Ms Knox Haly's evidence. Her views as to the way in which a teacher such as a Principal of a school could undermine social support provided at a workplace, was not shared by experts called by the defendant. Nevertheless, through cross examination, it became apparent that the experts' views had more in common than their evidence in chief at first suggested. Ms Knox Haly's opinions 212 Ms Knox Haly's opinion was that the 'absence of adequate social support in the form of instrumental assistance, communication and consultations' added to TAS Mary and TAS Su's vulnerability to their occupational stress related clinical conditions. She identified various failures by the Principal to provide what she regarded as supportive management and leadership from 10 March to 17 March. She explained that the absence of such support exacerbated the impact of a situation which was already difficult for the employees, because of 'role conflict, physical danger and exposure to critical incidents.' 213 Ms Knox Haly's opinions included that: Staff were frequently exposed to critical incidents such as detainees fighting or teachers being assaulted. The very real possibility of danger from assault increased with unpredictable combinations of detainees, lack of staff briefing about detainees' backgrounds, as well as the changes cause day the building programme. In the midst of an increased risk of exposure to critical incident there is a manager who failed to provide the type of support that was needed ... Consultation and discussion was one of the few mechanisms available to these staff members through which they could improve theory levels of personal protection. Cutting off consultation meant cutting off these staff members ability to exert some control over their working environment. The unwillingness of the Principal to discuss ... concerns would only have sent the message that these staff members' safety was not a consideration. Given the combination of poor social support and increased risk of critical incidents, it was most definitely foreseeable that these staff members would develop psychological injuries. 214 In her reports, Ms Knox Haly referred to both cross sectional and longitudinal studies which had examined the role of co-worker and supervisory social support. One study of teachers, for example, had found that those with greater years of professional experience were associated with reduced levels of occupational stress and that those with strong relationships with their principal, good relationships with colleagues and an ability to contribute to decisions, reported lower levels of occupational stress. 215 Some studies showed that social support played a buffering role or helped mitigate stress, others did not. Other stressors identified in various studies included things such as high workloads, unmet career expectations, harassment, low control and more pessimistic individuals suffering more. Some studies suggested that 'agreeableness and extroversion' were associated with greater levels of social support. 216 None of the studies referred to in the evidence were studies directed to the work of TAS or teaching staff employed at a school like Putland. The experts each referred to studies, research and experiences which they had each had in other workplaces and with other occupations, including public sector employment. 217 Ms Knox Haly's conclusions included that 'there is a reasonably consistent evidence for the positive impact of social support on psychological outcomes, however the magnitude is quite variable. Clearly whilst social support has a role to play, it is not the only "active ingredient" in the equation.' She also dealt with levels of social support which were too high, thus becoming counter productive and not being perceived as helpful. Ms Knox Haly concluded that 'at the risk of stating the obvious, the magnitude of impact that social support is going to be determined by the context'. 218 The defendant criticised Ms Knox Haly's conclusions as being inconsistent with the evidence. That criticism must be accepted in part. Her view, for example, that there was a 'riot' amongst the detainees at Putland on 10 March, when the Principal left to pursue the detainees who had escaped, was not made out. Nor was she aware of all that the evidence revealed as to the role of A/Ps then left in charge of Putland, under the operating hierarchy, under which a TAS' immediate supervisor was the teacher with whom he or she worked, for example. She was also not entirely aware of the role of the DJJ, in assisting DET staff, or of the way in which the system by which staff could contact A/Ps to have a detainee removed from class, operated. She was also not aware of various other matters such as how the Focus and Access programmes operated, to determine that detainees were suitable to attend school; how staff could raise student behavioural difficulties at morning DAP meetings; how that system operated and the controls which were available to deal with such students; how programmes were risk assessed and how the weekly Friday afternoon meetings operated. 219 It should be observed that some of the matters put to Ms Knox Haly by the defendant in cross examination as being aspects of the system at Putland which she had not taken into account in coming to her conclusions, were, however, matters not made out on the evidence, particularly in relation to the events here in question. For example, that there were various behaviour management reports in relation to detainee behaviour in existence; that the Principal ensured that teacher Day Books included information relevant to detainee behaviour; and that the Principal herself trained staff in risk assessment. 220 'Social support' Ms Knox Haly agreed included emotional support, appraisal, informational support and instrumental support. Instrumental support had various aspects, including things such as an employer taking steps to address a concern about equipment; the way in which a supervision system was structured; how supervisors were allocated to teams; the availability of a school counsellor and so on. She regarded, nevertheless, that support such as that provided by staff welfare officers and the EAP system, as having a more limited effect than that of the Principal. She also agreed that the support from an immediate supervisor was important, but in her opinion, such support could be undone, by what others, such as the Principal did. She explained in her experience that if employees felt that they could not raise things with their manager, they stopped communicating a whole range of issues, which increased organisational risk. On her approach Ms Knox Haly concentrated on the issue of leadership at Putland, which she regarded as crucial, explaining that: ... you can have a really great supervisor but the whole, but the work place culture can just be absolutely gutted if you have got the wrong person for those supervisors to report in to. The effectiveness of those supervisors is going to be substantively limited. 221 In cross examination, Ms Knox Haly explained that in her experience of workplaces dealing with critical incidents, like police and fire brigades, people needed to band together to cope with the incidents to which they were exposed, under a leader. In such situations, the best emotional support came from the workplace, not personal life. In that context, management support was important because peers could only take a worker so far. The starting point was the manager. She also explained that workers exposed to critical incidents were acutely sensitive to how people listened to them afterwards. A breakdown at that point often led to people going off work. 222 Ms Knox Haly did not believe that the events of 10, 15 and 17 March would necessarily result in psychological conditions in the average normal person, but she agreed that those events could so affect someone already vulnerable, for some other reason. She also agreed that TAS Su had some personal vulnerabilities, which would not cause an injury like Post Traumatic Stress Disorder ('PTSD'), but which could be a contributing risk factor. Ms Knox Haly also agreed that TAS Su had received social support after the 17 March incident, from her A/P and a GP. In her view, there were problems with the Principal's behaviour beforehand, especially in discounting TAS Mary's concerns. Witnessing that, undoubtedly, had had an impact on TAS Su. 223 She also explained that this was why the defendant's policies expected managers to behave in particular ways after an incident, because assumptions could not be made as to how people would cope with them. It was also why some employers used employment psychological screening, to identify people with such vulnerabilities. Some employers conducted mental health surveys, to assess whether employees were at risk of injury; some employees were referred to HealthQuest. Some employers sought the assistance of health professionals to assess their workforce, particularly after a critical incident. In a workplace where critical incidents were routine, there was a greater need to have in place a system of support from management, to deal with such incidents. 224 Ms Knox Haly also explained that vocational discontent did not necessarily cause injury, but that it could contribute to it. She also agreed that longstanding dissatisfaction or unhappiness could lead to an adverse trivial event causing an injury. 225 Ms Knox Haly disagreed that while stress was common, injury, or distress was relatively uncommon, referring to statistics which showed a high incidence of psychological disorders amongst the workforce, which was why, in her view, it was critical that people with psychological conditions be managed in the workplace. While not everyone who was exposed to a crucial incident would develop PTSD, some would. 226 Ms Knox Haly, disagreed, however, that without notice from an employee, an employer could not know who was at risk of injury. In her experience good employers consulted with their workers, to actively elicit that information and also observed employee behaviour, as well as co-worker and supervisor reports and feedback from EAPs. That information had to be actively sought. An employer could not sit back and wait for disaster, being proactive to ensure safety had to be pursued in relation to both physical and psychological health. 227 Ms Knox Haly explained that her report was not a 'reverse risk assessment', seeking to explain why social support had failed at Putland, but looked at the factors which had put people at risk. She had thus focused on social support provided and the relationship between the Principal and staff, which, in her opinion, resulted in increased risk of psychological injury. Much of her information had been gleaned from Ms Koussa's investigations into how the injuries in question had been sustained. Ms Koussa had investigated what the workers in question had been stressed by at this workplace. The investigation did not concentrate on the aspects of the systems which had worked, but what had failed. In Ms Knox Haly's explanation, the best systems in the world would fail, if the necessary relationships were not working. Managers could drive people out of workplaces into lodging stress claims, by their lack of empathy. This could be assessed by what workers and supervisors each said about the cause of the stress in question. Here, there had been failure of instrumental support, because of the Principal's approach, which needed to involve the Principal having empathy, being approachable and not dismissive of staff. 228 In re-examination, when taken to evidence of A/P Rebecca as to the Principal's treatment of staff, Ms Knox Haly's evidence was that the supervisory structure at Putland was hollow, because communication within it was not working. Responsible managers should communicate with staff to elicit how they were feeling and coping. Teacher Ron's communications in his Day Book as to his concerns about his safety, was a red flag for any manager, suggesting that he was not coping and that he was concerned about TAS Mary. 229 In her experience of workplaces where a lot of stress claims were being experienced, managers tended not to recognise their own contributions to their employees' state. Professor Tennant's views 230 Despite his own research in the area, Professor Tennant disagreed with much of Ms Knox Haly's evidence, including criticising the articles she had used in reaching the opinions which she expressed in relation to social support, as not being sufficiently recent, although it appeared that initially he had not been supplied with all of the material Ms Knox Haly had referred to. As to the research relied on in relation to social support, Professor Tennant's criticism was also that it was based on measures which were subjective, without objective measurement of the actual social support received. 231 Professor Tennant also had other criticisms of the literature and research relied upon by Ms Knox Haly, given the charges here in question, which related to a short period of time, with a lack of social support over a short period, in Professor Tennant's view, 'likely to be insignificant in effect'. The Professor also discussed the difference between correlation and causation and the difficulty in distinguishing, for example, what comes first, a depressed person receiving low social support, or low social support having an effect on how the person perceives the work environment. 232 It was Professor Tennant's view that based on the assumptions he had been provided with by the defendant, he would not have expected that the stressors to which TAS Mary and TAS Su were exposed, would have caused a degree of psychological morbidity in the average or normal person. In his view, such a reaction could reflect other stressors in their lives or at work. There was, however, no evidence of such other stressors, in either case. 233 In Professor Tennant's view, occupational stress was a continuum and there is no environment in life without it. He contrasted the work of a TAS with that of other occupations which, in his view, were more stressful, such as that of a policeman, or ambulance officer and judged the stressors which TAS Mary and TAS Su had experienced prior to their injuries, to have been trivial, or of minimal significance. He expected that the majority of people would recover from them in a relatively short period of time. 234 It was Professor Tennant's opinion that there was quite extensive social support available to TAS Mary and TAS Su at Putland; including the teachers with whom they worked; the A/Ps; psychologists available from the EAP system; their families and friends; GPs and other private professionals. He regarded the incident involving TD on 10 March as involving 'minimal stress' even though teacher Ron and TAS Mary received no assistance with TD when they called for it, observing that 'They could choose not to work in such institutions should they believe they could not handle such stress'. 235 Professor Tennant also viewed the incident on 15 March involving BH as being of minimal significance, which should cause distress in bystanders for a brief period only. It would not cause significant psychiatric morbidity. As to 17 March and what TAS Su was involved in that day, his view was that 'In the context of this institution, this event is of trivial significance and unlikely to cause anything but extremely brief distress in most individuals.' He regarded TAS Su's response as 'quite extreme'. Other of the experts did not view her response in quite the same way, yet their consistent evidence was that it was at the upper end of responses which the stressors to which she was exposed, were likely to result in. 236 Professor Tennant regarded none of the events he dealt with as being of clinical significance; morbidity was unexpected and that TAS Mary's anxiety disorder was inconsistent with the stressor. While TAS Su had been diagnosed with PTSD, his view was that the symptomatology was a mix of depression and anxiety, with some post trauma features. He raised the possibility of exaggeration, in her context. I am unable to accept these conclusions, having heard the evidence as to what TAS Su was exposed to and the evidence of the medical experts, who had examined her and Professor Tennant's evidence, in cross examination. 237 In Professor Tennant's view there was also a very high level of instrumental support at Putland, both in the stable work environment and in the situation when stressful events might occur. Similarly, the availability of emotional support, being care, comfort etc, from one's peers, and immediate supervisor at a time of stress, seemed more than adequate. He explained that emotional support would mostly come from close personal friends and family, managers and supervisors were more crucial in setting up structures. In this respect, as supervisor, A/P Rebecca, in Professor Tennant's opinion, was more important than the Principal; and she was more than adequate to provide the necessary support in the circumstances, given the reporting structures in place. The Professor also took the view that the risk management systems in place at Putland were 'of excellent quality'. He regarded 'risk identification, risk minimisation and risk management' to be critical. 238 The Professor also regarded the idea of the Principal managing every individual in every crisis, as an absurd proposition. The role of the Principal, in his view, was primarily: ... to ensure all procedures and protocols are in place, that staff are informed of these, and to monitor over time, that these are adhered to when particular situations arise. Revision of such procedures would occur when incidents arise which provide new information, to indicate that risk management could be further improved. 239 In cross examination, while the Professor expressed the opinion that the Putland safety system was an excellent one and that even excellent systems on occasions broke down, it became apparent that he was not aware of the difficulty with the radio system at Putland. The Professor was also unaware that the Principal suppressed discussion of the events of 10 March. In his opinion, after a significant crisis staff should discuss the issue, so that safety issues could be dealt with. 240 In cross examination, Professor Tennant also explained that while he agreed that adequate social support could minimise or reduce the ill effect of a critical incident on psychological health, including where an employee was subjected to two such incidents in close proximity, that the severity of the incidents also had to be considered. That, undoubtedly, must be accepted. Mr Rees' evidence 241 In his report, Mr Rees also criticised Ms Knox Haly's report and the literature to which she referred, as inadequately dealing with occupational stress and social support, by failing to deal with other matters which might cause occupational stress, such as idiosyncratic personality; emotional coping strategies and needs; perception of job demands and control of their job. He made a similar criticism in relation to Ms Knox Haly's conclusion that there was a risk of exposure to critical incidents increased by the issue of social support, which was largely construed as emotional support. In Mr Rees' view, while the literature referred to the value of such support when dealing with the threat of physical or psychological injury, the preferred source of such support varied from person to person. 242 In Mr Rees' view, while emotional support or its absence was likely to have consequences for alleviating or generating stress, delivery at a workplace was not always possible, because of an individual's preference as to whom to go to for support. 243 Another of Mr Rees' criticisms of Ms Knox Haly's conclusions was that she wrongly focussed only on 'emotional support', without taking into account 'instrumental support', as he did, that is support provided under the defendant's systems, such as the support of supervisors, apart from the Principal; the DAP system, where problems could be raised; and Friday staff meetings, when detainees and class compositions could be discussed. 244 Mr Rees' evidence was that emotional support was provided one to one, by whoever a person sought out, or whoever they had been referred to, it did not necessarily need to come from a manager like the Principal. Typically it came from a person closer than that, such as colleagues, friends and family members. Thus, while he concluded that it was desirable when TAS Mary sought to speak to the Principal on 10 March, that she be empathetic, it was not inappropriate to direct her to more appropriate and available persons, such as her supervisor. 245 Mr Rees' evidence was that senior leaders and managers were often better at making strategic decisions than dealing with people. This was consistent with the evidence of other witnesses about the Principal. He accepted that the absence of social support could be problematic, but typically in a workplace there was some such support. 246 As to Ms Knox Haly's opinion that support provided by an A/P could be undone by the Principal's behaviour, it was Mr Rees' view that given TAS Su's opinion of the Principal before 17 March, the support of the A/P that day would not have been totally undone. Further, given the other types of support available to TAS Mary and TAS Su, the Principal's support was not essential. 247 As to injury resulting from a lack of social support over the course of a week, it was Mr Rees' view that given the structural support for employees exposed to occupational stress at Putland, emotional support would be derived from the person the individual sought out and that it was not essential for the Principal to be involved. Mr Rees agreed that a leader would cast a long shadow over any work group and the social system and culture of a workplace, but in his view there was no need for direct involvement by the Principal; emotional support was provided by closer individuals, even though it was possible for a manager or leader to diminish or discourage support by poor example or dysfunctional communication. 248 Given the systems operating at Putland, he doubted that the Principal's absence would result in a lack of social support. 249 As to the Principal's response to TAS Mary after 10 March, while it was desirable that she be empathetic to employee distress, often such leaders were better suited to making decisions, than being oriented to people. Emotional support was better provided by others, given the boundaries of the role, and that senior managers were typically not skilled in counselling. TAS Mary and TAS Su had other sources of support. 250 He also took the view that psychological injury resulting from a critical incident was distinguishable from that which arose from other workplace stressors. Such an injury typically left a footprint, with persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. The event was persistently re-experienced by recurrent and distressing thoughts and there were symptoms such as increased arousal, hyper vigilance and exaggerated startle responses. There would be a powerful emotional response of fear, helplessness, or horror. Excessive stress without a critical incident could result in depression and anxiety. 251 Mr Rees had not interviewed either TAS Su or TAS Mary, but said that it was possible that their symptoms were attributable to other stressors at work. 252 In Mr Rees' view, the absence of social support at work was likely to result in resentment and low motivation at work, but alone was unlikely to cause psychological injury. He said: ... the perception of trauma and social support is often idiosyncratic to the individual and this has at times led to psychological injury arising in one person but not in others who were present at the critical incident. Likewise the issue of emotional social support is something individually perceived in many cases and a supervisor who is judged as empathic and approachable by most in the work team can be perceived by one person as being remote and unavailable. 253 Mr Rees assumed that the programmes delivered at Putland were risk assessed to be low. Given the supervision system, where TAS reported to teachers, who reported to A/Ps, Mr Rees could offer no suggestions as to what the defendant could have done to assess any vulnerability in the case of TAS Mary or TAS Su, other than routine debriefing and being encouraged to use available counselling. He was uncertain whether there was an obligation for a TAS to be referred to a psychologist, after a critical incident. 254 It was apparent from Mr Rees' report and his cross examination, that there were difficulties in his appreciation of what various of the defendant's written safety policies required and their operation. For example, he agreed when they were put to him, that they contemplated that the defendant's staff was at risk of psychological injury, thereby demonstrating its foreseeability and that TAS Mary was entitled to seek the support of the Principal, to deal with the events of 10 March. He did not accept, however, that the Principal failing to deal with the matter raised with her, necessarily put TAS Mary at risk of injury; she had others who she could turn to, such as her A/P, although he agreed that it was then important for the A/P to get answers to the questions she raised with the Principal. In re-examination, he explained that for some people involved in a critical incident, if they are given accurate information, they take support from that and it helps them. He agreed that there needed to be delegation from managers such as a Principal, in relation to such matters. 255 In re-examination, Mr Rees also explained that few people developed any pathology from critical incidents, most coped with resilience and bounced back, recovering within 6 to 12 weeks. As to when distress becomes something else, Mr Rees said if someone was displaying symptoms over a period of a week or two, it was worth asking questions. In the case of bullying and harassment, that involved a serious challenge to a person's sense of self and challenge to their integrity, which also challenged their sense of safety. 256 Mr Rees was not aware of the concerns raised by the PSA at Putland as to bullying, harassment and intimidation of staff, which he agreed employees should not be subjected to, nor should they be belittled for raising matters of safety. Mr Rees regarded that if this had occurred, it was inadequate social support and that such treatment was a breach of the obligations which the OHS Act imposed. He regarded the matters raised by the PSA as being an important warning sign of an environment where psychological injury was a potential danger. He also agreed that employers needed to have systems in place to monitor and keep an eye out, knowing that some employees with such injuries would not speak up, but he understood that the defendant's policies in this respect were operating. He agreed absenteeism was one sign of potential injury and no absenteeism and attending work punctually was a sign that an employee was coping. 257 When taken to three entries in teacher Ron's Day Book, where mention was made of TAS Mary, Mr Rees was of the view that what was there written required investigation, as not raising trivial matters. He said that what teacher Ron there said would worry any supervisor who read it. He was not aware that the Day Books were not checked by supervisors. 258 Mr Rees also agreed that the matters referred to in Ms Koussa's report as having been noticed about TAS Su's state, which was withdrawn, also should have been recognised as an indicator of psychological problems. Some questions, at the least, should have been asked. 259 Mr Rees also explained that his assessment of the 10 March incident was that it was relatively minor, compared to that of 15 March. He also agreed, when told that the duress alarm system failed on 10 March and that the system which required that TD not be allowed to return to class unaccompanied, also failed, that the incident was not trivial or minor. He also accepted that it had a major effect on the persons involved. 260 Mr Rees also agreed that it was well known that psychological injuries could be a cumulative effect of exposure to more than one incident, which an employer had to guard against. He also agreed that the threat of being assaulted by young males facing criminal charges, wasn't trivial and that in the circumstances prevailing at Putland on 15 March, in the aftermath of the escape, where detainees were hyper, there could be a heightened risk of vulnerability to psychological injury. He said that the straw that broke the camel's back was often seen and in TAS Mary's case, it was probable that was what occurred on 15 March. In re-examination, he explained that an incident might make a unique demand on a person's resources, which they were not up to. If they were already somewhat depressed, a relatively minor event could become a major one for them. 261 He was not able to agree that sending TAS Mary to class that day, without resolving the safety system failure of 10 March, was psychologically unsafe, although he accepted that it might be distressing and might have a potential danger to her psychological health. He agreed that the Principal ought to have explained what happened if she could and that exposure to two critical incidents on 10 and 15 March, could have magnified any existing level of psychological unwellness or ill health. He also agreed that debriefing or reviewing what had happened, was a standard practice after a critical incident, as a means of preventing or reducing psychological injury. 262 He also agreed that a view held on the one hand by Jayne M and A/P Rebecca that what had happened as being at the upper end of seriousness, being dismissed by the Principal saying 'Heaven help us if something serious happens', evidenced a failure to provide adequate social support. Dr Brown's opinions 263 Dr Brown examined TAS Mary and provided two reports. His opinion was that in her case, malingering should be suspected, given her controlling behaviour at interview, particularly by way of contrast to her demeanour with colleagues, which he later observed in his waiting room. He made reference to her conflict with the Principal over safety issues and observed that she had: 'developed psychological symptoms after an incident in the classroom of a Juvenile Justice facility. This occurred on the background of the staff having made complaints about procedures and safety and her perception that the Principal was ignoring these complaints and TAS Mary was powerless. Apparently the incident which precipitated her symptoms was not directed at her but at a teacher. She was frustrated at having the basic safety problem ignored'. 264 Dr Brown took the view that TAS Mary had an adjustment disorder, whose symptoms were mild when he saw her, after she had been treated; predominantly anxiety with some reactive depression. His opinion was that her work was the significant contributing factor to her psychological condition. In his supplementary report, having been provided with further factual information by the defendant, Dr Brown commented that: However, their occupation of TAS, in requiring interacting with difficult juveniles by its very nature has inherent risks of periodic unpredictable and impulsive behaviour despite all practical steps by management to prevent or minimize these risks and speedily respond to control and resolve incidents when they occur. Thus any individual who chooses to remain in such an occupation needs at any time to consider whether they are still prepared to accept this inherent risk of adverse incidents. When they are no longer able to accept this then they should seek safer employment. Not everybody is psychologically suited to such occupations and it is to be expected that others who are suited may with the passage of time or change in personal circumstances decide that they are no longer prepared to accept the risk. Leaving such an occupation in this situation is not a psychological condition but the result of their own rational decision. My knowledge of this phenomenon comes from my tenure as Chief Executive Officer and Psychiatrist Superintendent of the Corrections Health Service which provided health and psychiatric services to the New South Wales Prisons. 265 Having been provided with information as to the events of 10 and 15 March, Dr Brown's opinion was that TAS Mary 'seeks to become involved in matters beyond her responsibility and persists in such'. In cross examination, he explained that he was referring to TAS Mary's attempts to have the escape discussed, but agreed that given that the detainee who went with TD to the classroom as the recess commenced, was one of the escapees, that it was a reasonable issue for TAS Mary to have raised and pursued. 266 In his report, Dr Brown said that the two incidents were 'an inherent risk in the job' and that in neither case was TAS Mary subjected to physical violence or directly threatened. Dr Brown had not interviewed TAS Su, but also commented on her position. He did not alter his earlier opinions in relation to TAS Mary, but added that the March 2004 incidents were: ... not of sufficient severity to result in her developing a psychological condition would not to leaving this type of work. Thus in my opinion their continuation is being maintained by motives other than the incidents at work ... 267 In cross examination, it became apparent that Dr Brown was not aware of the difficulties with the radio system at Putland and that he had not been provided with various of Ms Koussa's reports, or some other medical reports. 268 Dr Brown agreed that it was predictable that detainees with a criminal background would be violent and threatening and could conspire together. That was an inherent risk and steps should be taken to reasonably prevent that at Putland, where relevant information being provided about detainees, would increase safety. He explained that it was predictable that a detainee might be violent, but not the actual circumstances in which that would occur, but the threat is ever there. 269 Dr Brown also agreed that there was a link between bullying and causing psychological injury at work, which he described as often a cause of such injury, and that another was non supportive management. He explained that stresses are cumulative, so that the degree of stress that someone is under is cumulative, 'so if somebody has been stressed by a particular thing in the past then if that occurs again that will be stressful and the reaction may be somewhat more than it was previously.' In re-examination, he explained that if someone appeared to be coping, cumulative stresses would not be obvious. 270 Dr Brown also explained that a relatively minor or insignificant incident in terms of threatened violence, could be' the straw that broke the camel's back', so far as injury was concerned. In re-examination, he explained that with an employee who was not complaining, an employer could not predict which minor matter might result in injury, nor could they assess what exactly might have caused an injury, but an employee's deterioration might be detected from their behaviour and interaction with others. 271 Dr Brown also agreed that inadequate social support had a causal link with psychological injury, which could manifest itself in anxiety or depressive symptoms. At the lower end they might be normal distress responses, but at the upper end, major psychiatric illness, including anxiety disorder and major depression. 272 Dr Brown also explained that psychological injury could occur relatively quickly after an incident, in which event it was too late to use social support such as that available from an EAP. At that point, such an employee would be referred to a doctor, for assistance. Dr Brown explained that some people suffering from symptoms soldiered on, which was often in their best interests, because it was a very effective mechanism for solving a problem. In some cases soldiering on could, however, be damaging to health. Dr Brown explained that policies such as those of the defendant, which were directed to early recognition and support of those developing occupational stress, were a good prevention strategy, which depended on some step being taken, once a problem was recognised. This required managers to be trained in what then to do. 273 Having been taken to the incident report of 10 March, provided by teacher Ron and TAS Mary, it was Dr Brown's opinion that they were then at potential risk of a psychological injury, given reports that they felt frightened, intimidated, abused and threatened. Some action needed to be taken by management at Putland to deal with that situation. An investigation as to why there was no response to the duress alarm, was also required, so that the problem could be rectified, by the appropriate person in charge, such as the A/P or the Principal. The staff involved should then have been told why the system had not worked and that it had been rectified, if there was to be a psychologically safe work environment. Similar action was required in relation to the breakdown of the system, which permitted TD to return to class unaccompanied, to threaten the staff. There should also have been a discussion with the staff; the issue had to be resolved before they went back into that environment. 274 Dr Brown was not aware that the Principal had failed to investigate these matters on 10 March or later, and had refused to deal with the issue when TAS Mary repeatedly sought to raise it with her, in person and at staff meetings. His evidence was 'well if the Principal just cut off a discussion of an issue - to me that sounds most extraordinary'. He also agreed that this would result in anxiety which needed to be addressed and that this approach might also make other staff, such as TAS Su, anxious. 275 Dr Brown accepted that in forming the views which he had formed of TAS Mary at interview, he had told her at the start that she did not need to talk about what had happened to her, she having told him that it would distress her. That was why he had obtained little of her history. He also explained that he had assumed that the Principal would have experienced similar difficulties with TAS Mary. It must be observed that there was no evidence that there was a foundation for that assumption, indeed it was contrary to the Principal's description of TAS Mary to Ms Koussa, as well as the description given by other witnesses who worked with her. None of the other practitioners who interviewed TAS Mary experienced this difficulty. In re-examination, Dr Brown explained that people with controlling personalities could be difficult to manage. Again, this was not what the evidence suggested of TAS Mary. 276 Dr Brown explained the difficulty in determining whether a particular response was a normal response, or a symptom of a psychological injury. A person could be scared, for example, without having a psychological condition, but that reaction could also be a symptom. There would be psychological injury, only if the symptoms continued. When asked in re-examination how an employer might know that interpersonal conflict might cause injury, he said they couldn't. 277 In relation to the BH incident on 15 March, Dr Brown regarded throwing a chair with force at a person, with the intention of hitting them, as serious and the man involved, dangerous. He described this incident as escalating from aggressive behaviour directed towards physical things, to a situation where physical constraints escalated the issue. TAS Mary's reaction, to freeze, after trying to stop another detainee from becoming involved, was on Dr Brown's evidence, one of three possible reactions, which he described. 278 Dr Brown accepted that what had occurred to TAS Mary on 15 March was a cause of her psychological injury, which, in his view was adjustment disorder. What happened on 10 March was also a cause of the injury, as was the conflict with the Principal, if she gave no response in relation to TAS Mary's concerns about the system failures on 10 March. He accepted that this would have contributed to the adjustment disorder. Did TAS Mary and TAS Su suffer any psychological injury? 279 There was a deal of evidence from doctors, psychologists and psychiatrists as to the nature of the psychological illnesses which TAS Mary and TAS Su had each suffered, about which there were differences of opinion. Their workers compensation claims had been investigated by Ms Koussa, with the result that liability was accepted. She interviewed them, the Principal, their supervisors and treating practitioners. Like their doctors, Ms Koussa came to the view that they had each suffered psychological injury, as the result of what they had been exposed to at work. She concluded that they both had adjustment disorder with mixed anxiety and depressed mood. 280 While the defendant had never suggested that TAS Mary and TAS Su had not been injured at work and had not denied liability for their injuries, in these proceedings, evidence was called in relation to such matters; as well as whether their injuries were foreseeable and whether a person of normal fortitude would have been so injured. 281 Thus, in cross examination, it was suggested to Ms Koussa, for example, that their symptoms might have been exaggerated, or misdescribed. In TAS Mary's case, Ms Koussa disagreed, explaining that was not her view, given the corroboration from the workplace that TAS Mary had been involved in the critical incidents which she had described and that the symptoms which she described matched symptoms which would be expected, following that type of incident. 282 In TAS Su's case, Ms Koussa's report had sounded a note of caution as to how the results should be interpreted, but still she had concluded that the stressors to which TAS Su had been exposed at work, had led to her decompensation to the point of injury. Her involvement in the 10 and 15 March incidents and her pre-existing concerns for her safety, undoubtedly could have led to anxiety and a high arousal level, which, on Ms Koussa's explanation, would not have taken much to trigger, in terms of her getting to a state where she was no longer coping. The combined effects of the incidents to which TAS Su was exposed, were thus sufficient to have led to psychological injury, sustained after the events of 17 March. Ms Koussa explained that there was a difference between stress and a psychological injury and that she believed that TAS Su's symptoms were disproportionate to the stressors which Ms Koussa understood she had been exposed to, but, in her case there had been a series of incidents, of a low level of themselves, in close proximity, with the final result that she was in a state of heightened anxiety, which triggered the symptoms which she finally then experienced, as the result of her injury. 283 That evidence, when considered together with the evidence of what, in fact, occurred to TAS Mary and TAS Su at this workplace, the views formed by treating doctors and other practitioners, that they had been injured and the evidence of the defendant's experts, finally given in cross examination, left no room for doubt that both TAS Mary and TAS Su suffered a psychological injury at work. 284 While the experts differed in their opinions as to what type of injury they had sustained given their symptoms, nothing much turns on this. Different types of injuries can be revealed by the same symptoms. Diagnosis is difficult. I am satisfied that it is unnecessary to come to any conclusion as to which diagnosis is the correct one. There was finally no disagreement that there had been an injury. That is sufficient, having in mind that the legislation is concerned with the risk of injury and the charges here in question, which allege that there were psychological injuries, not a particular type of injury sustained. It is, however, convenient to deal at this point, with two other matters. TAS Mary's controlling personality 285 Dr Brown had examined TAS Mary in the context of her workers compensation claim. He experienced difficulty in dealing with her, forming the opinion that she had a very controlling personality, in his view, displaying quite a different attitude in his interview with her, by way of comparison to her behaviour towards colleagues she encountered in his waiting room. His diagnosis was that she had an adjustment disorder. It was argued that these observations were borne out by the manner in which TAS Mary gave her oral evidence and were relied on to advance an argument supported by Professor Tennant's views of her rigid personality, that she was particularly susceptible to injury. 286 I did not have that impression of TAS Mary, having considered all of the evidence and having observed TAS Mary give her evidence. She certainly was not an easy witness to cross examine, disagreeing strongly with things put to her, when she did not agree. She was, undoubtedly, very dissatisfied with the way in which she had been treated in her employment at Putland. That this evidenced a 'controlling personality', was not a conclusion that I could come to. She seemed to me to have quite a cheerful disposition, albeit being distressed about having been injured and having to again recount her experiences in a courtroom. She had been injured at work, as a result she had already frequently had to recount what had occurred in accounts given to various people who had treated her and no doubt, when recounting what her evidence would be, when called to give evidence in these proceedings. She was certainly not happy with certain suggestions made to her in cross examination, which sought to cast a different light on her experiences, to how she perceived them, especially when she thought that they were being trivialised. On occasions, she resorted to black humour to make her point. This did not, in my assessment, cast any doubt on her evidence, or suggested that she was particularly susceptible to injury. 287 That she had a 'controlling personality' or a 'rigid personality' was also not consistent with the evidence of others as to her demeanour at work, even for example as she was described by the Principal to Ms Koussa. That description included that she did a good job at Putland, that she was invaluable, experienced, long serving and got on well with staff; was an excellent teacher's aid, who had no performance management issues. Her supervising A/P described her in a similar way - 'fabulous delivery with the boys; she's grandmotherly but tough; she can read situations and knows exactly when to jump in and help'. She 'got on very well with everyone.' It was TAS Mary's concerns with safety at Putland and how she came to be treated by the Principal, coupled with her exposure to the incidents with TD and BH, which led to her injury. 288 On the evidence, TAS Mary had long worked successfully at Putland, dealing with all that her employment brought, even a very serious incident in which she personally had to intervene to protect one detainee being strangled by another. It was after 12 years of such work that she came to be injured, following her exposure to the events between 10 and 15 March. Even Professor Tennant agreed that while each of the incidents in question had to be considered separately, so too did the accumulation of the stressors in question, which resulted in her injury. I am unable to come to the view that TAS Mary, or her personality, particularly exposed her to the injury which she suffered. I take the view that the injury flowed from the risk to which she was exposed and the failure of the defendant's systems, to protect her from such injury. 289 Ms Koussa's opinion and that of the various treating doctors, that TAS Mary and TAS Su's injuries resulted from the experiences at work, was consistent with other evidence, including that of Jayne M and of the Principal. While the evidence of experts called in the defendant's case, questioned in their evidence in chief, whether TAS Mary and TAS Su had suffered a psychological injury, given their evidence in cross examination. I am well satisfied that the prosecutor established to the requisite degree that those injuries were sustained. I will return to this evidence later. TAS Su's particular vulnerability 290 I take the view, as I have said, that what the precise nature of the illnesses which TAS Mary and TAS Su suffered was, need not be determined, there finally being no real question on the evidence, that there was a psychological injury in each case, as the result of work factors in the period of the charge, albeit some disagreement as to its nature. 291 TAS Su's condition was particularly closely examined in the defence case. It was suggested, for example, that there may have been an attempt on her part to exaggerate her symptoms, so that the evidence as to her situation needed to be approached with particular caution. That was certainly a warning note in Ms Koussa's report, but I am satisfied that the medical evidence clearly established that TAS Su had suffered a psychological injury, as the result of her experiences at work. 292 Dr Bannan's evidence was that he was not aware that TAS Su had any pre-existing vulnerability to such an illness, or any other condition which would cause or aggravate her symptoms. That evidence was consistent with what the Principal told Ms Koussa as to her observations of TAS Su, and TAS Su's own evidence, as well as being the view of her GP. In cross examination, Dr Bannan accepted that TAS Su developing the symptoms which she suffered from, 'after these trivial events', as Mr Phillips SC described her experiences at work, where she was not herself physically injured, was rare and difficult to predict. In her case, Dr Bannan, nevertheless, said that the threat of injury was enough to have caused her illness. 293 Dr Edwards was also cross examined as to the possibility that TAS Su was not suffering from the symptoms she described. He disagreed, describing her as someone who enjoyed her work, but that 'what interfered with her was the accumulation of violent incidents she witnessed'. That evidence was also consistent with the Principal's description of TAS Su to Ms Koussa, as well as that of A/P Rebecca. Dr Edwards concluded that TAS Su came to have a fear for her safety and the illness she suffered was the result of her perceptions of what she had experienced. 294 I am also unable to accept the defendant's submission that Dr Edward's view that until 17 March, there was no pre-existing injury to TAS Su, conflicted with Ms Knox Haly's view, that what occurred on 17 March, was the straw that broke the camel's back, so far as TAS Su was concerned. To the contrary, they agreed that it was what occurred on 17 March, which led to the injury manifesting. That was consistent with the view of various other witnesses, that an incident trivial in itself could cause a psychological injury, as the result of earlier exposure to other incidents. 295 Similarly Dr Lamarque was questioned about TAS Su being a malingerer, which he said was not his impression. He said that his understanding was that TAS Su functioned well and competently and raised issues in a normal way, in the environment in which she worked. That, too, accorded with A/P Rebecca's description of TAS Su. Before TAS Su was injured she was coping well with work, but was increasingly concerned about safety issues, which she was coping with, until she experienced a strong reaction, after witnessing the assault on 17 March. That developed into an illness. Again, this accorded with the Principal's description to Ms Koussa and Ms Koussa's opinion. Mr Lamarque also agreed that working in an environment where colleagues went on stress leave, could draw to light that something was happening in that environment, to which TAS Su was also being subjected. 296 On the evidence, the injuries TAS Su and TAS Mary each suffered were a manifestation of a known risk, namely the risk of psychological injury, as the result of exposure to violence and threats of violence at this workplace. Jayne M, the Assistant Manager of Cobham agreed that it was well known that repeated exposure to actual or threatened violence at work, could have a cumulative impact on the psychological health of staff, which could contribute to a psychological injury being suffered. The expert evidence supported that view. That risk had manifested at Putland before March 2004, in relation to other staff. Teacher Ron also suffered a psychological injury, in March 2004, as the result of the events of 10 and 15 March. 297 The defendant's argument that close attention should be paid to the actual work which TAS Su performed and the type of detainees to whom she was generally exposed to, had force, of course. The detainees at Putland were all regarded by the defendant as posing serious risks to staff safety. TAS Su, like other staff, was trained to treat them accordingly and the defendant's practical safety systems were directed to dealing with that risk. There was no evidence from which it could be concluded that she worked with less dangerous detainees, or under anything other than the systems and practices operating at Putland, which have earlier been described, designed to ensure that despite the serious risk which those detainees posed, staff were kept safe. Other staff were not injured 298 That other staff only experienced distress, anxiety, worry, anger and other normal emotional responses, to the events which resulted in a psychological injury in TAS Mary and TAS Su's case, or even no symptoms at all, was fortunate, but beside the point, if the events resulted in TAS Su and TAS Mary suffering an injury, whether it be physical, or psychological, given their involvement in the events and the effect which they had upon them. Under the OHS Act employers have an obligation to ensure safety and prevent injury, both physical and psychological. They have no such responsibility in relation to mere emotional responses, no matter how strongly felt. Given that the defendant did not conduct any psychological screening of those who it selected for employment at Putland, a practice, on the evidence, adopted by other employers who engage staff who are frequently exposed to acts of violence and threats in their work, plainly the defendant had to approach its obligations on the basis that it could have in its employ, persons who were particularly vulnerable to psychological injury when exposed to critical incidents. 299 It will be necessary to return to this issue, but for the moment it is sufficient to note that I am entirely satisfied that both TAS Mary and TAS Su suffered a psychological injury, as the result of what occurred to them at work, in the period to which the charges are directed. What is the relevant applicable law so far as psychological injury is concerned? 300 It was the defendant's case, that the prosecutor had failed to show that any offences had been committed, because up until the time TAS Mary and TAS Su left work, that there were insufficient clear indications available to the defendant that they were 'vulnerable to psychological injury - on the pleaded dates of the charges'. I am unable to accept that submission. 301 While the common law in Australia recognises, as the Chief Justice observed in Morgan and Anor v Tame (2000) 49 NSWLR 21 at 24, 'that psychiatric damage is a different kind of damage from personal bodily injury', on its face s 8(1) of the OHS Act does not make any distinction between the two types of injury. By that section, an employer is obliged to ensure both an employee's physical and psychological health, safety and welfare, while at work. The offence created by the section is one of absolute liability. It involves no mental element on the defendant's part, either in terms of intention or negligence. (See Kirk at [41] per Spigelman CJ.) 302 The mere occurrence of an injury, is not, however, sufficient to establish that an employer has committed an offence. It is the employer's failure to ensure that the employee was not exposed to the risk of such an injury, while at work, which constitutes the offence. (See, for example, Drake Personnel Pty Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449.) Thus, a causal connection between the employer's acts and omissions and the consequent exposure to the risk, whether of physical or psychological injury, must be demonstrated. (See, for example, State Rail Authority (NSW) v Dawson (1990) 37 IR 110 at 120-21.) 303 An assessment of the relevant acts and omissions must often be conducted by reference to the defendant's systems, established through its documents and records. (See Environment Protection Authority v Caltex Refining Co Pty Ltd (1992) 178 CLR 477 at 505 and 554.) 304 An employee sustaining injuries may, however, indicate the existence of a risk to health and safety, as well as the gravity of the risk to which the employee was exposed. (See WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at 210 at [68]). 305 The employer's acts or omissions need not be the cause of the risk arising; the offence is committed if they were a substantial or significant cause of the risk, viewed in a commonsense way. (See The Crown in Right of State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [50].) 306 The fact that a risk was not created by an employer, does not obviate the obligation to ensure safety. (See, for example, O'Sullivan at [42].) 307 The onus of establishing a defence falls on the defendant, to the civil standard, once an offence has been proven. (See Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 45.) 308 While the concept of reasonable foreseeability is not relevant to the determination of the nature of the duty created by s 8 of the OHS Act, it may be relevant to a s 28 defence. (See for example St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (2007) 162 IR 241 at [20]). It follows that while the section does not permit of the idea that an offence is only committed in circumstances where there are sufficient, clear indications available to an employer beforehand, that a particular employee is vulnerable to psychological injury, such questions may be relevant when considering whether a defence has been established. 309 It will thus be necessary, to return to this question when considering the defences, however, I am satisfied that the concept that an offence is only committed where a defendant has sufficient, clear indications beforehand, that a particular employee is vulnerable to psychological injury, is not relevant to an assessment of whether the offences here charged have been proven. 10 March 2004 - Matter Number IRC 1391 of 2006 310 The offence charged was: On 10 March 2004, at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training, and Department of Juvenile Justice) whose address is 35 Bridge Street, Sydney and 477 Pitt Street, Sydney in the State of NSW being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary, in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. 311 What has to be determined is whether the defendant failed to ensure TAS Mary's safety, as alleged and if there was any causal connection between the risk to safety in question and the defendant's acts and omissions. 312 I am satisfied, for reasons which I will explain, that the charge was made out, the necessary causal connection between the defendant's acts and omissions being established, to the requisite degree. Was TAS Mary at risk from TD on 10 March? 313 What was not open to any doubt on the evidence was that teacher Ron was assaulted by TD on 10 March, using the meaning of the word 'assault', as defined in the Macquarie Online Dictionary, there also being some issue between the parties as to the meaning of that word, despite the Principal's evidence that she advised teacher Ron, on 10 March, that TD had assaulted him. Her advice was consistent with the meaning of the word, there defined as: Law an unlawful physical attack upon another; an attempt or offer to do violence to another, with or without a battery, as by holding a stone or club in a threatening manner. 314 Under the applicable system, points were discussed with detainees towards the end of class. Repeatedly shoving a table into teacher Ron's stomach was unarguably an assault, as the Principal later told teacher Ron. That occurred when teacher Ron was sitting at the table with another student discussing points. As a result of this behaviour, TD was removed from the class at 9.50 am, according to teacher Ron's part of the level 2 misbehaviour report. TAS Mary's account was that it was after the bell. That was when points were ordinarily being discussed. 315 It was the defendant's case that the evidence did not establish that on 10 March, there was a physical risk from TD, either generally to a TAS, or specifically, to TAS Mary. Given the evidence as to the way in which TD behaved before he was removed from the class by A/P Amanda and how he ripped teacher Ron's point score out of teacher Ron's hand, when he first returned, causing teacher Ron to think that he was going to be hit and TAS Mary to interpose herself between them, when teacher Ron moved away, I am unable to accept that submission. It was certainly teacher Ron's evidence that he was then concerned that something would happen to TAS Mary. That was why he pressed his duress alarm. 316 The defendant relied on TAS Mary's evidence that she had placed herself between TD and teacher Ron, because she was confident that he would not 'stoop to knocking out a woman' and because she realised his anger was focused on teacher Ron. That belief plainly could not establish that TAS Mary was not then at risk of any physical injury, let alone a psychological one. To the contrary, TD had been assessed by the defendant under its own system, as always creating a high risk of injuring its employees; staff were trained to treat all detainees, including TD as being potentially violent; a physical risk had already materialised for teacher Ron in class that day; TD was extremely angry about his points, so angry that he was prepared to return to class to further accost teacher Ron, the second time in the company of another detainee, also classified to be of high risk. While TAS Mary did not believe his anger was directed at her, she did not stand back, leaving teacher Ron to deal with this behaviour, she was actively involved in getting TD out of the class, on both occasions, as she had been trained to do, while waiting for assistance to be provided by DJJ staff. As she described it, she 'tried to use myself as a distraction from his intention of hitting' teacher Ron. 317 The expert evidence was that the best predictor of a detainee's likely behaviour, was a detainee's most recent behaviour. Placing herself between TD and teacher Ron in the circumstances, was undoubtedly brave, on TAS Mary's part. Her assessment at the time, that she was not herself then at risk of physical injury from TD, could not establish that no such risk then existed. It plainly did, on the defendant's own assessment of TD. TAS Mary's report that day, said that: When he was taken out by Amanda (DAP) after the 1st bell, he re-entered the room to demand his points. He was threatening to Ron both physically and verbally. He left and then returned when Ron and I were still in room. I stood between him and Ron and SS stood in doorway. We both felt very threatened. 318 There is no reason to doubt that report, particularly given the evidence led in these proceedings. That TAS Mary felt threatened by TD's behaviour is unsurprising, given the circumstances in which she was placed. He had already been convicted of offences and had been charged with other offences involving violence; he also had a history of violence in custody; he was assessed by the defendant to be of high risk; TAS Mary had been trained to treat him accordingly and he had repeatedly abused, threatened and even assaulted teacher Ron in class that morning. In accordance with her training, it was TAS Mary who acted to persuade TD to leave on both occasions, when he was allowed to return unaccompanied to class. On the second occasion, he was in the company of another high risk detainee, who was standing at the door. It cannot be doubted that this behaviour put TAS Mary at risk. What was the risk to TAS Mary which arose on 10 March at Putland? 319 That Putland was a school where staff were at risk, not only of physical injury, but also of developing psychological injuries from their experiences at work, cannot be doubted, given the documentary evidence. This was confirmed by the evidence of Mr Armstrong. This risk was known to the DET in March 2004, given earlier events at Putland, including injuries sustained by other staff. By 10 March, two members of the TAS staff and one teacher, had taken stress leave. 320 In the case of TD, as at 10 March, it was already known to the defendant that he was prone to engage in behaviour which exposed staff required to work with him, to a risk of injury. He was one of the younger detainees at Cobham, described by Mr Muir as more immature and prone to acting out, impulsive behaviour. He was also known to fight with other detainees and to have anger issues. Although he was young, he was a repeat offender and was already serving time. He had been unsettled in class in previous days and had been increasingly involved in acts of violence. 321 By having him in class at Putland with TAS Mary that day, the defendant, undoubtedly, exposed her to the risk of injury, which flowed from his violent and threatening behaviour, when it materialised in class. This risk, undoubtedly, arose at work. Notice to the defendant 322 I cannot accept, as the defendant submitted, as to causation, that 'the issue for the Court to determine was whether the feelings expressed by both TAS Mary and teacher Ron constituted sufficient Notice to the Defendant that TAS Mary was at risk of psychological injury from the TD incident'. 323 Questions of the defendant not being put on 'notice', that TAS Mary was at risk of psychological injury, given feelings which were expressed at the time, simply do not arise, in the way argued for the defendant. That approach overlooks the obligation to ensure safety, imposed upon it by the OHS Act. 324 The defendant accepted that an offence under s 8 of the OHS Act is constituted by an employer failing to ensure that its employees were not exposed to risk to their health and safety while at work, even risks which it had not created. In New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [11], it was observed by the Full Court that : 11 It should now be beyond doubt that (subject to s 53 defences) employers are obliged to minimise or reduce risks which may be created by external factors outside the employer's control such as the uncontrollable, unpredictable acts of a violent armed member of the public (see Police Service of New South Wales (No 2) and South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116) or the violent acts of severely intellectually disabled students considered recently by the Full Bench in The Crown in the Right of New South Wales (Department of Education and Training) v Maurice O'Sullivan. 325 In this case, the defendant also had a statutory obligation to provide detainees at Cobham with access to education. It did not create the risk of violence and other threatening behaviour, which the detainees posed for its employees. It did, however, create the systems under which the employees were required to perform their work, face to face, with the detainees who gave rise to that risk, when they were given access to classes at Putland, where the employees worked with them. Under those systems, the defendant, being unable to eliminate the risks which detainees posed for its employees, had in place various mechanisms, or controls, for dealing with those risks. This was necessary, because the morning DAP system and the defendant's other systems, were not capable of accurately identifying all those detainees whose behaviour on any day would put employees' safety at risk, so that they could be excluded from class. Such control mechanisms included assistance being provided by A/Ps, with any behavioural problems, as they arose during the day; having DJJ officers stationed nearby, or even in class, if the circumstances warranted it; and exclusion of detainees from class, if that became warranted, during the course of the day, given any misbehaviour. 326 Other 'controls' of the risks detainees posed in class included the School Rules, which encouraged detainees not to behave in ways which might injure staff; and duress alarms and radios, by which staff in classes with detainees could call for assistance. None of these controls prevented the behaviour which gave rise to the risk of injury, from manifesting. Even the School Rules were only directed at encouraging detainees not to engage in such behaviour, they could not prevent them. All of the mechanisms and controls which were in place were but the means by which the risk was dealt with, once it arose. 327 It follows that exposure of its employees to detainee threats of violence and actual violence, as well as other difficult and threatening behaviour in the classes in which they worked at Putland, was as the result of the systems which the defendant operated. In that sense, the risk of injury flowing from its employees' exposure to such detainee conduct, was both a known risk and one which resulted from the systems of work which the defendant implemented at Putland. In that context, questions of an employee putting the defendant on notice that they were at risk of psychological injury, simply cannot arise in the way in which the defendant sought to argue. Did teacher Ron act appropriately? 328 There was also an issue raised by the defendant, as to whether teacher Ron had dealt appropriately with this incident, as it unfolded. The events all occurred over the course of a one hour class. Swearing was not tolerated at Putland, although on the evidence, not all staff enforced this approach. The incident report and the evidence of TAS Mary and teacher Ron was that TD was angry about the points he had received in class the previous day and that his swearing and shoving of the table, was concerned with his points. While they initially settled him down, the behaviour recurred and when their attempts to settle his behaviour then failed, assistance was called from A/P Amanda, who removed him from class. Under the applicable policy, TD should have remained under supervision of DJJ officers outside the class and ought not to have been able to return, other than in the company of A/P Amanda. How he came to return without such supervision, was unable to be explained by any witness. 329 The two staff members each had a duress alarm in a pocket, so that it could be activated if they were confronted with a threatening detainee, without alerting the detainee to the fact that assistance was being called for. Assistance was sought by use of this alarm system when TD was able to return to class, unaccompanied by the A/P who had removed him earlier, or by a DJJ officer. 330 Radios were also provided to enable assistance to be called. In two situations those radios could not be used. The first, if radio traffic prevented an outgoing call and the second, if using the radio was judged by the teacher as likely to inflame a situation with a detainee. Teacher Ron's evidence was that he could hear radio traffic and he elected not to try to use the radio, in the circumstances with which he was confronted. While the Principal suggested in her evidence, that he had waited too long to call for assistance, it must be observed that this evidence was given in circumstances where it was clear that the Principal never became truly informed of the events in this class that day, despite the level 2 misbehaviour report which it generated; teacher Ron's approach to her after the class; or TAS Mary's repeated approaches to her, a matter I will return to. Other witnesses did not share the Principal's opinion, as to how teacher Ron should have dealt with this situation. 331 The defendant also argued that there had been an inadequate explanation as to why teacher Ron did not use the radio. Teacher Ron had difficulty recollecting the events in question in detail. At one point he referred to radio traffic, at another, that he did not wish to incite TD. Both explanations accorded with evidence as to the problems with using the radio, if there was other traffic and the discretion left to teachers, not to use the radio, if there was such a concern. The staff were in class with a number of detainees, all assessed by the defendant to be of high risk. Under the system, whether to use a radio, if other traffic permitted its use, was a discretion teachers were given, they having to make a judgment call as to what was best to do, given the behaviour they were being confronted with. That, no doubt, was why staff were also supplied with a concealed duress alarm. On the evidence, I am unable to conclude that teacher Ron's judgment failed him. Did TD return to class unaccompanied? 332 TAS Mary's recollection of the events was somewhat better than teacher Ron's, although there were various inconsistencies in their evidence and with the details of other accounts which they had given about the events. Some of these accounts were recorded by other people, including medical practitioners, so differences in details, was not surprising. Nevertheless, there was no real difference in the essentials of what they recalled. TD was removed by A/P Amanda and was able to return to class twice, without supervision. 333 A/P Amanda's report, written shortly after 12.08 pm on 10 March, confirmed that she was then aware of TD's return to class, as did her evidence in these proceedings. A/P Amanda confirmed that TD ought not to have been able to return; that she was unsure how it came about that he did; that he ought not to have done so, 'unless in company and until the matter was dealt with' and that there should have been a quick response to the duress alarms. A/P Amanda denied having failed in her responsibilities, but could not recall what had occurred when she left TD, after taking him from the class. Nor could she recollect making any enquiries later, as to what had happened, despite what she had written in her report. On her evidence, it was not up to the staff in the classroom to prevent TD re-entering the class. He should have remained under the supervision of DJJ staff in the quad, until the report had been dealt with. She agreed that the system had failed and that this would be of concern to the staff involved. What time did TD return? 334 There were also issues as to precisely what time TD returned to class on the first and second occasions. The first must have been after 9.50 am, when he was removed from class by A/P Amanda. TAS Mary's account was that he was removed after the first bell at 9.55 am. Discussion of points occurred at the end of class, usually after the bell sounded at 9.55 am, to allow for packing up and points allocation. That was what teacher Ron was doing, when TD returned and tore the points sheet out of his hand. Given the system, it follows that TD returned after the first bell. 335 The second return must have been shortly after the recess bell at 10.00 am, because TD was then in company with another detainee, who TAS Mary did not recognise. He was one of those who later escaped during the recess break and could only have been in the quad if he had been released for morning tea. Teacher Ron and TAS Mary were then about to follow the other detainees out of the classroom, for the recess break when TD returned for the second time. After TAS Mary had persuaded him to leave again, she went into the quad to speak to A/P Amanda, who told her the detainee who had accompanied TD was SS. She was trying to speak to A/P Amanda, to ask why no assistance had been provided in response to the duress alarm, when the fight in the quad broke out. 336 It seems to me that nothing much turns on whether or not teacher Ron was correct in his recollection that he was still in class when he first heard of the escape on the radio. He thought that TAS Mary was then with him. TAS Mary did not herself have access to a radio. On her evidence, she had already gone into the quad, to speak to A/P Amanda before the escape. Either one could have been wrong in their recollection. Nothing really turns on this. On the evidence, the second return occurred just after the recess bell, when TAS Mary and teacher Ron were about to leave the class. Did TAS Mary use her duress alarm? 337 The defendant also submitted that it was not established that TAS Mary had used her duress alarm, as did teacher Ron. That was her evidence in these proceedings and was what she told Ms Koussa, although when she pursued a complaint against the Principal in July 2004, she said that it was only teacher Ron who had pressed his alarm. 338 The report provided by TAS Mary on 10 March did not deal with the matter of the use of the duress alarm, while teacher Ron did mention pressing the alarm. The report was designed to record student misbehaviour, so that it could be dealt with by the DJJ in accordance with the applicable statutory scheme, not failures of the defendant's safety system. What the various staff wrote on that report was concerned with the behaviour of TD, not with teacher Ron and TAS Mary's concerns about the failure of the safety system, which was taken up in other ways. TAS Mary also physically had less space to record her concerns on the form than did teacher Ron. Nothing much turns on her not mentioning the alarm there. Nor did A/P Amanda deal with such concerns in her report, despite referring to TD's return to class, which ought not to have been possible under the defendant's system. 339 Whether or not TAS Mary sounded her alarm, as well as teacher Ron, it was not in question that he had sought assistance using his alarm. TAS Mary was then dealing with TD, having interposed herself between them and was seeking to persuade TD to leave. That an alarm sounded in the admin area, but there was no response, is also not open to doubt, on the evidence. 340 A duress alarm sounding at the board in the Putland admin area, was heard by TAS Su, as the morning break commenced, just as she was entering from the caged area in the quad. TAS Su explained that she thought that Sharan W did not immediately respond to the alarm, because, under the operating system, there was no need for an alarm at recess, when students were under the jurisdiction of the DJJ. While TAS Mary and teacher Ron thought that it was Sharan who called out, it was TAS Su's evidence that it was she who had stepped out to the door of the quad and called out from the caged area to TAS Mary and teacher Ron, to enquire if help was needed. She could see a student near the door of their classroom nearby. She was told that help was required. Sharan was by then right behind her and TAS Su then left the response to be organised by Sharan. As she entered the admin area, TAS Su heard news of the escape. 341 Sharan was called to give evidence, but had no memory of the day in question. Her only explanation was that if she had not responded to a duress alarm, it can only have been because the alarm did not light up on the board. She also explained that if an alarm sounded at recess, she would call out, 'is everyone in', to see if all staff had returned to the admin area and if nobody responded, or they didn't know, she would put her head out of the door, into the caged area, to call out to a youth officer, stationed there for assistance. If the radio traffic permitted it, it would be used to call for assistance, or an A/P or the Principal could be alerted, or help could be called physically, from the door to the admin centre. On TAS Mary's evidence, when she later spoke to Sharan, she told her that she could not get on to the radio, when the alarm was sounded. On the evidence, why there was no response to the alarm sounded, cannot be established. 342 TAS Mary certainly went out into the quad to speak to A/P Amanda as to why there had been no response to the duress alarm. She also raised the matter immediately with the Principal when the opportunity arose and repeatedly sought to pursue it with her, in the following days. She also pursued it later in a complaint she made about the Principal. Despite this, there was no investigation conducted by the defendant, into what happened on 10 March, even though the defendant's applicable policies, required one. 343 Why there was no response to the duress alarms thus cannot be explained. Undoubtedly, the defendant's systems failed that day in a number of ways. Given the evidence that it was a busy morning for A/P Amanda, the duty A/P, undoubtedly it was busy for DJJ staff as well. What happened in this class, shortly preceded a fight in the quad and an escape. Perhaps Sharan did call for help, but was not heard, given the fight and the news of the escape, which seems to have come to light shortly afterwards. Whatever be the explanation, the fact was that help was not provided when TD returned unaccompanied to class and the duress alarm system was engaged. TAS Mary and teacher Ron were left alone to deal with TD. Should teacher Ron and TAS Mary have locked the classroom door? 344 In these proceedings, teacher Ron and TAS Mary were also criticised by the defendant for not having locked the door after TD left, after his first return. On the evidence these events happened quickly, shortly prior to the commencement of the break and shortly afterwards. At that time, TD had been removed and should have been kept out of class, when teacher Ron and TAS Mary were continuing the class with the other detainees. Undoubtedly, it would have been better, if they had locked the door after TD left, but TAS Mary explained that ordinarily the door was only locked if an incident was occurring outside. Assistance had been called, none had come, there were other students in the class, the packing up process routinely undertaken in the last five minutes of class had to be dealt with, as did allocation of points to other detainees, who then had to leave when the recess bell sounded. Then, before they were able themselves to leave, TD returned again with another detainee to confront the staff again. As TAS Mary explained it, they were confronted by TD the second time, just as they were about to leave, after the last of their students. 345 I am unable to conclude, on the evidence, that the sequence of events was such that teacher Ron and TAS Mary can justly be criticised for TD having a second opportunity to confront them, upon returning to class. Even if the criticism was warranted, had TD been supervised by DJJ staff in the quad, when he was removed from class by A/P Amanda, as he ought to have been, he should have had no opportunity to return unaccompanied to class. It was TAS Mary's evidence that when she persuaded TD to leave after the first time he returned, she had not called out to DJJ staff, confident that they would see him in the quad. Given the applicable system, there seems to have been a basis for that belief. 346 It was also A/P Amanda's evidence that once removed from class, detainees were left in the supervision of DJJ officers in the quad, while the details of what had occurred in class were sorted out. She described detainees as then being 'in limbo'. On 10 March, she was an acting A/P and when not acting, she was a classroom teacher. She was aware that on 10 March, TD was able to return to class, a matter sought to be discussed later that day at a staff meeting, where the escape was being discussed. 347 It follows from the evidence that, had the duress alarms been responded to, as they should have been, or had TD been kept under the control by the DJJ staff, as he should have been, TD ought to have had no opportunity to return to class on either occasion. On leaving the class and returning to the quad, he ought to have been supervised, even when recess was taking place. Was TD unsupervised? 348 The defendant placed some reliance on the fact that TD's second return to the classroom occurred during the recess break. It was submitted by the defendant that 'as such TD was not wandering around unsupervised'. Given the evidence as to the defendant's system, the submission cannot be accepted. 349 Detainees were supposed to be supervised by DJJ staff in the quad, when not in a classroom, even during a recess break. At recess the supervision system was different, because there were ordinarily then five to eight DJJ officers in the quad and an A/P was also present. This relatively large number of DJJ officers was stationed in the quad, to supervise all of the detainees in school that day, while they took their refreshments together. This was necessary, not only because of the number of detainees then gathered, but also because staff also left their classrooms through the quad at recess, locking the doors behind them, after detainees had left. 350 Plainly enough, detainees had to be supervised in the quad to allow staff to move safely. TD and the detainee who accompanied him, SS, should thus not have had an opportunity to bail staff up, as they were leaving their classes, or attempting to do so. Had the supervision system been operating properly, any difficulty which TAS Mary and teacher Ron were having in leaving the class, should have been observed and attended to. 351 Evidence was called from DJJ officers. They confirmed that the system required them to supervise detainees taken out of class. Ray H's evidence was that detainees were generally required to stay seated under the pergola when removed from class and if a detainee was observed outside the class, in the quad, they would be approached and taken into control. He could not recall much about what had occurred on the morning of 10 March, before the fight in the quad and the escape. He was stationed in the quad, but denied that TD had been left unattended in the quad, or that he had been able to enter the classroom unaccompanied. Ray H confirmed, however, that there had been no investigation subsequently, into what had occurred that day in relation to TD. 352 Ray H's evidence could not establish that TD did not enter the classroom after he had been removed by A/P Amanda on 10 March. That was not only the evidence of the two staff members in the class, it accorded with the contemporaneous reports and what other DET staff understood, after the events in question. 353 While Mr Muir said in his evidence that this was a system failure which he found extraordinary, it was one known to the DET and yet resulted in no action of any kind. To the contrary, repeated attempts to raise the matter were repulsed by the Principal. Should TAS Mary have called for help from her classroom? 354 As to the idea that teacher Ron and TAS Mary were at fault, because they should have gone to the door and called for assistance, when TD returned to class the second time, another of the defendant's submissions, it again overlooked that TD was able to return to class accompanied by another detainee, SS. TD accosted them as they sought to follow the students out of the class. That there was a safe opportunity to reach the door, while TD and SS were there, to do what the defendant suggested, was not established. 355 TAS Mary's evidence was that she had been prepared to barge her way to the doorway, if necessary, but she persuaded TD to leave on the second occasion. It was then that she went to the quad to speak to A/P Amanda. In cross examination, she accepted that she should have called out to the DJJ officers on the first occasion TD returned, but said she cannot have been thinking straight. She and teacher Ron still had other detainees to deal with in class. Undoubtedly, it would have been better if she had called out. That TAS Mary was surprised by what occurred must be accepted. It ought not to have been possible under the defendant's system. It follows that even if TAS Mary should have called out to the DJJ staff when TD first returned, that does not explain why the supervision system failed, as it undoubtedly did. Other system failures 356 That staff could ordinarily call for assistance from the door of a classroom was undoubted. In this case, a duress alarm was pressed, while TAS Mary and teacher Ron attempted to deal with TD. At least one alarm was heard and TAS Mary and teacher Ron were asked if they needed help; they advised that they did, but still none came. It was then that TAS Mary went into the quad to speak to A/P Amanda, to identify who the second detainee was and to ask why assistance had not been provided. TAS Mary should not have done so. Under the system, she should have gone to the admin area, but that does not explain the systems' other failures. It does explain, however, how A/P Amanda became aware of what had occurred, as reflected in the report which she made later that day. 357 Given that there was never any subsequent investigation by the defendant into what occurred in this class on 10 March, the defendant was unable to lead any evidence by way of explanation of the system failures that day. Neither the DET nor the DJJ conducted any investigation. All their subsequent attention was concerned with other failures that day, which permitted three detainees to escape from Putland. 358 If the explanation for the failures of the system that day, was DJJ distraction with the busy morning that A/P Amanda described in her evidence, before the escape which necessitated the assistance of the Principal being called for; the escape and a fight in the quad, which appears to have preceded it, it suggests obvious deficiencies with the defendant's systems. On 10 March, that system failed to ensure staff safety. The Principal's evidence 359 The defendant did not lead any evidence to explain that day's failures, no doubt because of the failure to conduct any investigation at all into what went wrong that day, in relation to these calls for assistance. It did lead evidence from the Principal. Ms Koussa's report recorded that she had: ... denied knowledge of the incident that took place on Thursday, 10 March, 2004. Ms Kate W. reported that she was not aware that a student had become abusive in teacher Ron's classroom on that day or that the duress alarm had been pressed on three separate occasions within that session and that no one had responded. Ms Kate W said that she would need to investigate this matter further. 360 The Principal always had access to the level 2 misbehaviour report prepared that day by teacher Ron, TAS Mary and A/P Amanda and she had spoken to both teacher Ron and TAS Mary that day. A/P Amanda had placed the report in the folder maintained so that the executive, including the Principal, would have access to all such reports. A/P Amanda's evidence was that the procedure was that all such reports were discussed with the Principal, but she could not recollect whether this report had been. All that she could recall was that there had been some discussion of the failure of the duress alarm system at a staff meeting that day, but not what was said. 361 Despite having affirmed the correctness of what she had told Ms Koussa, the Principal's evidence in these proceedings then departed from what was contained in this report, in a number of significant ways. 362 As noted earlier, in her evidence in chief, the Principal gave evidence which was quite inconsistent with what she had earlier told Ms Koussa. She said that on 10 March, she had a conversation with teacher Ron, after her return from the pursuit of the detainees, in which he told her of TD snatching a piece of paper from him, insulting him and pushing a table into his stomach. She advised him that this constituted an assault, which was a chargeable offence and should be dealt with in a level 2 misbehaviour report. It was, but no charges were laid and the assault, and the failure of the duress alarm system, were never dealt with at Putland, or even investigated by the defendant. 363 This evidence, it seemed to me, cannot have been known to the defendant, when the prosecution evidence was called. It was not put to teacher Ron and it was inconsistent with the approach which the defendant adopted to the cross examination of he and TAS Mary and to evidence which it called from experts. The defendant's approach was that the TD incident, had not, in fact, been a serious one. That was not the view of witnesses such as Jayne M, who agreed that the situation could not be regarded as a trivial one, or that of Mr Muir. Had it truly been known to the defendant that the Principal had advised teacher Ron on 10 March, that TD's assault constituted a chargeable offence, it is difficult to conceive that the defendant would have suggested to its own employees that the incident was not serious, or that it would have instructed its experts as it did. 364 I also note that the Principal's evidence was given after teacher Ron gave evidence that in his discussion with the Principal on 15 March, when he asked about BH being charged with his assault, she told him that the Police had far more important things to deal with than to worry about what had happened in class with BH on 15 March. No charges were laid in relation to the assault of teacher Ron on either 10 or 15 March. Subsequent events on 10 March 365 What had happened to teacher Ron and TAS Mary seems to have been overlooked, in the aftermath of the escape. Despite telling teacher Ron that TD had assaulted him, the Principal refused to permit the staff to discuss what had occurred in class with TD. She also refused to discuss with TAS Mary, what had occurred. She instigated no investigation. That this would have heightened the fears and concerns of staff, including TAS Mary, about their safety and work environment at Putland, as was the evidence, was not surprising, as indeed, various of the defendant's experts later accepted. 366 That the alarm system could have been improved, so that the problems existing with the radio system did not permit a duress alarm to go unanswered, was demonstrated by the fact that after these events, the system was altered to ensure that the duress alarms activated by Putland staff also sounded in the DJJ administration area, to ensure that DJJ staff were despatched by the DJJ to respond to the call. The system no longer depended on the DET first taking steps to ensure that this occurred. The causal connection between the defendant's acts and omissions and the materialisation of this risk 367 The defendant also argued that the prosecution had failed to establish any causal connection between its acts and omissions and the risk with which the offence charged is concerned. 368 On the evidence, there can be no question that staff working at Putland were at constant risk of injury from violent young men, frustrated by their incarceration. That risk had manifested itself at Putland in various ways over the years preceding the events which led to these charges. 369 The defendant had sought to address that risk by various means, including the information provided to staff about each detainee; the information provided to staff each school day about their relevant behaviour at the daily staff meeting, at which DAP sheets were finalised. The system required teachers and TAS to have input into the decisions made in relation to the DAP each day. A/P Rebecca's evidence was that at the time of these offences, the reality was that teachers and TAS staff who had concerns about particular students being placed into their classes that day, were required to put their concerns in writing. The Principal's evidence corroborated this. A/P Rebecca's evidence was that staff were discouraged from pressing their concerns to be dealt with at the morning briefings. Other witnesses, such as the Principal and A/P Jon, an acting A/P in March 2004, gave evidence to somewhat different effect. Their evidence was that such concerns were raised and effectively addressed, at the morning meetings, although in the Principal's case, she could not recollect various occasions put to her, when she was said to have dismissed staff concerns. She certainly agreed that there were occasions when she did not accept that staff were raising such concerns at the appropriate time. A/P Jon also agreed that there were such occasions. 370 The morning meetings were conducted in a context where the DET had gone about establishing programmes which it had assessed as being low risk. Each detainee at Putland was regarded as being of high risk and so was given access only to low risk programmes. This impacted not only on the type of programmes delivered at Putland, but also the way in which access to equipment was managed; how DJJ officers were stationed near classrooms to provide assistance, when required by DET staff and how teachers and TAS in the classrooms were provided with duress alarms and radio access, to enable them to call for assistance, if violence was threatened and broke out. 371 The various arrangements in place for staff in classrooms being able to call for and be provided with DJJ support, were designed to provided adequate controls, to ensure the safety of the staff delivering these low risk programmes, to high risk detainees. On the evidence, this DJJ support was necessary, because before March 2004, it was well known to the defendant that its practical risk assessment methods were not effective in identifying all detainees who should not be permitted to attend class. 372 While it was possible for detainees to be entirely excluded from a class, the decision-making process about such an exclusion was not accurate enough to have ensured that detainees who were prepared to engage in behaviour, which would put DET staff safety at risk, were identified beforehand, so that they could all be precluded from attending class that day. TD was certainly not identified as not being suitable for class on 10 March. 373 Thus it was, that despite those daily assessments, staff were exposed to detainees who threatened them and other detainees in class. This is what occurred on 10 March with TD. 374 The evidence also showed that other controls were available to the defendant, to deal with these risks. They included stationing a youth officer inside a classroom. This was utilised in the case of some detainees at Putland and was the system which operated at certain other DJJ detention centres, which have schools like Putland in operation. On the Principal's evidence, it was a system considered, but rejected at Putland. Even though it was a method of control in use at Putland on occasions, it was the Principal's view that it increased, rather than decreased safety. Why the Principal held this view was not explained. 375 Teacher Ron had experienced such a system while working in a juvenile detention centre in Scotland. He explained that the presence of a DJJ officer in class, freed the teaching staff to attend to delivery of the class, rather than to ensuring safety. A/P Rebecca described how such a system operated at the school in another detention centre at which she worked after she left Putland. 376 As is so often the case in prosecutions brought under the OHS Act, the evidence showed close attention having been paid by the defendant to the development of paper safety systems, as I have already outlined, and that ongoing attention was being paid to their further development and implementation. As has been much discussed in the authorities, sometimes such systems are not developed in a sufficiently timely way, to ensure that the obligations imposed by the OHS Act are met, when difficulties arise. Sometimes, even the best systems are departed from in practice, despite all of the considerable attention paid to their development, with the result that the obligations imposed by the OHS Act are not then met, despite the prior development and implementation of such systems. 377 That this was the case at Putland in March 2004, was entirely demonstrated, despite the defendant's submission that it was the actual systems in place, by which it met its obligations under the OHS Act, not the paper systems it had designed to ensure such safety. That submission plainly had to be put, given the evidence that important paper safety systems were simply not operating. 378 The evidence did not suggest that the failure to have paper systems operating at Putland was as the result of any particular design, or plan, on the DET's part. To the contrary, DET staff at Putland were informed of various safety policies devised by the DET for its schools, which they were obliged to observe. Staff were required to keep such policies in a folder. Still, on the evidence, in truth, various of those policies were not in operation at all at Putland. Evidence called by the defendant also showed significant departures, by various staff, from other practical systems designed to ensure safety of staff. Further, on the evidence, even what was in practical operation at Putland, did not ensure safety on 10 March. 379 There were many examples in the evidence of departures from required systems, practices and policies. The Principal's evidence was that DET staff's failure to lock a classroom at recess on 10 March, permitted three detainees to escape that day from the Centre. The system required that classroom doors be locked whenever staff left their classrooms during breaks. The system also required Putland staff to return to the administration centre at recess, or if remaining in classrooms, to lock the door. Despite this, on the evidence, the Principal herself remained in the quad during recess on 10 March, as did TAS Mary and A/P Jon. That day teacher Ron and TAS Mary were unable to leave their classroom for recess, when they were accosted by TD, in the company of a second detainee. At that time detainees should have been under the control of DJJ staff, so that such behaviour could not occur. TAS Mary went into the quad to speak to A/P Amanda, during the recess break, once TD was persuaded to stop blocking the door. 380 Contrary to the applicable policy, TD was earlier permitted to return to this classroom, unaccompanied by a DJJ officer or an A/P, after having been removed from class at about 9:50 am. Despite pressing their duress alarms for assistance when first accosted, none was provided and although they managed to get TD to leave, they did not then lock their classroom door, which would have prevented TD's second entry. The class had not finished and teacher Ron and TAS Mary then plainly had other obligations still to deal with, before the class ended. 381 How TD came to be able to return again, to accost teacher Ron and TAS Mary in a class a second time, in the company of another detainee, was never investigated by the defendant. Given the presence of the second detainee this must have occurred after the second recess bell sounded at 10:00 am. Duress alarms were sounded again, but there was no response, other than the enquiry as to whether the staff really required assistance, but despite advising that they did, none came. 382 It was TAS Mary's evidence that this occurred as she and teacher Ron were following the remaining detainees from the classroom, when they would have locked the door. TD prevented them from leaving, until they managed to persuade him to leave the second time. Even during recess, detainees should have been supervised by DJJ officers, so that staff could leave their classrooms, via the quad. If he had been supervised as the system envisaged, this should not have occurred. 383 What occurred on 10 March thus demonstrated various serious departures from the applicable policies. The policies also required that an incident such as that involving teacher Ron and TAS Mary that day, be investigated. It was not. On the Principal's evidence, in her opinion, teacher Ron had left it too late to call for an A/P's assistance, when encountering difficulties with TD in class, but why there was no response to any of the duress alarms, was unexplained. Indeed, that failure was never investigated, or addressed by the Principal, the DET or the DJJ. 384 The Principal was adamant that security matters were for DJJ staff to deal with, yet on her own evidence, on 10 March when she saw a fight break out in the quad during recess, she went to assist the youth officers on duty to break the fight up, even though, on her understanding, dealing with such violence was their responsibility, not hers. When the Principal heard of the escape over the radio, she not only left the school premises to help look for the escapees, she drove two youth officers in her car, in pursuit of the escapees. Again, this did not accord with the Principal's own evidence as to her understanding of the respective roles of the DET and DJJ. After this incident, steps were taken to ensure that such a pursuit did not occur again. 385 Making errors and departing from procedures designed to ensure employees' safety, is of course, behaviour in which fallible employees, even of the seniority of a Principal, engage in from time to time. On occasions, that is because people undertake brave, even if foolhardy, actions. The OHS Act, nevertheless, expects employers to ensure safety, even in such circumstances. 386 In any event, there were other difficulties with the practical systems which the defendant had in place at Putland. To take but one further example for the moment, Putland staff were provided with a folder of policies which they were required to adhere to. The folder contained a DET Legal Issues Bulletin No. 9 of 10 March 2000, which dealt with physical restraint of school students. On the Principal's evidence, this policy applied to Putland staff. It instructed staff that there would be occasions when staff would be obliged to physically restrain students, where there was 'a real and immediate threat of injury to a person or serious damage to property and there is no other practical way of preventing the likely injury or damage.' On the evidence, such situations had arisen at Putland for staff delivering programmes in classrooms, prior to March 2004, when altercations broke out between detainees, despite the fact that youth officers were situated in close proximity and the communication mechanisms, with which such staff were provided. Detainees had suffered serious injury as a result. 387 As to such situations, the bulletin directed that staff could have an obligation to take positive action to protect a detainee, which would not be met if staff simply waited for DJJ assistance. On the evidence of TAS Mary, such a situation had arisen in 2003, when she had to become involved in restraining a detainee who had seriously assaulted another detainee in class. In the face of this policy and the evidence of situations where it had to be implemented, I am unable to accept the Principal's evidence that at Putland, ensuring safety of staff was a matter for DJJ staff alone, not DET staff. The evidence clearly demonstrated an approach to safety adopted by the Principal, inconsistent with this DET policy and the requirements of the OHS Act. When TD assaulted teacher Ron in class, after his first return, TAS Mary interposed herself, seeking to persuade him to leave, expecting that assistance would be sent in response to the alarm. That did not occur. 388 That staff employed at Putland would have a concern as to their safety, given the work which they performed and what it required, is thus hardly surprising, given DET policies and the evidence as to the risks to which they were subjected in the ordinary course of their work. Indeed, vigilance as to safety was a necessary, every day part of their work - a required part of the practical system the defendant operated there. It was well known before March 2004, that a number of staff including TAS Mary and TAS Su had ongoing and it would appear, growing concerns that their safety was not being assured at Putland, concerns exacerbated by various developments during the building programme then underway. There were occasions when those concerns were rejected by the Principal, when raised with her by staff, even A/Ps. She discouraged staff from raising or pursuing such matters, insisting that these were matters for the DJJ alone. On the evidence there was a sound basis for safety concerns at Putland, given the Principal's approach to staff concerns, which was inconsistent with applicable DET policies. 389 When the OHS Act was enacted in 2000, a new emphasis was placed upon consultation with employees about safety concerns. Those matters are dealt with in Division 2, Duty to consult, of Part 2, Duties relating to health, safety and welfare at work, of the Act. Section 16 permits such consultation through a safety committee, an elected safety representative, or through other agreed arrangements. There was a safety committee in place for Cobham as a whole, but on the evidence, serious dissatisfaction on the part of DET staff, with that arrangement and a desire for a separate DET safety committee for Putland. That desire arose in a context of a series of disagreements between staff at Putland and the Principal, in relation to a range of safety issues, which had led to the involvement of two unions and a dispute notification to the Industrial Relations Commission. 390 Such concerns needed to be appreciated against the background of the applicable statutory scheme, where s 14 of the OHS Act provided: 14 Nature of consultation Consultation under this Division requires: (a) the sharing of relevant information about occupational health, safety and welfare with employees, and (b) that employees be given the opportunity to express their views and to contribute in a timely fashion to the resolution of occupational health, safety and welfare issues at their place of work, and (c) that the views of employees are valued and taken into account by the employer. 391 Any commonsense and practical view of the evidence must lead to the conclusion that there was a causal nexus between the defendant's conduct, its acts and omissions and the risk to health, safety and welfare, to which TAS Mary was exposed on 10 March. On the evidence, I am satisfied that this connection was established, to the requisite degree. 392 While the defendant did not create the risk created by TD's behaviour that day, the defendant's acts and omissions certainly increased and failed to control the risk he posed to TAS Mary. It must be concluded that the defendant's failure materially contributed to that risk. (See O'Sullivan at [41] - [51].) 393 This conclusion follows from the evidence of the failure of the defendant's practical safety system on 10 March. It provided for detainees to remain in the control of DJJ staff once removed from class and for DJJ assistance to be provided to classroom staff when called for. This did not occur. 394 The problem was compounded by the approach adopted, once practical systems failed. The evidence showed that on 10 March 2004, sufficient attention had not been paid to dealing with the risk of psychological injuries at Putland, as the various paper policies earlier outlined required. There were other, obvious steps available to the defendant to prevent the risk to which those polices were directed, from materialising - namely, the steps which the policies required, but which were not implemented. 395 In relation to TAS Mary, Ms Koussa recorded in her report, that the Principal had told her, amongst other things, that TAS Mary had worked at Putland for a long time and that it was probably time for her to move on; that her capacity to be resilient in difficult situations was decreasing; and that the Principal had sensed that TAS Mary was feeling more hesitant and less safe at work. Despite this, the Principal also said that she had not seen any signs of distress in TAS Mary, except in 2002, where, after surgery, she had observed her being teary, but she had returned to her usual self, not long afterwards. Nevertheless, in her view, TAS Mary was overdue to look for work elsewhere, for her own well being. 396 Apparently, despite holding these opinions, the Principal never identified that TAS Mary was at any risk of psychological injury and had taken no steps to ensure that her vulnerability to injury, from exposure to behaviour such as that TD engaged in on 10 March, was addressed. Indeed, in her evidence in these proceedings, the Principal said that she had detected no signs that TAS Mary was at risk of psychological injury. Given what she had earlier told Ms Koussa and what the defendant's policies required in relation to detecting and dealing with the risk of psychological injury, that evidence cannot be accepted. 397 It should be noted that these things were observed by the Principal, in a context where she also told Ms Koussa, that Putland had improved its risk assessment and management processes since 2001; as a result there had been fewer incidents over time; and because of this, staff tended to overreact when an incident occurred. 398 TAS Mary and teacher Ron were working in a General Education class which TD attended. On the case advanced by the defendant, there was no issue that employees at Putland were repeatedly subjected to and witnessed actual and threatened violence and other antisocial behaviour by detainees, during their face to face contact with detainees. The Principal's evidence was that typical student behaviour involved detainees harming themselves and others, including staff; and damaging property and directing abusive language at staff. On TAS Mary's evidence, while this was not permitted under the School Rules, such language was often directed at staff. Various of the defendant's policies and practices were directed to the risk which this posed for staff. There was also no issue that TD was known to pose such a risk, given his behaviour while in custody, towards other detainees and staff. He had, on an earlier occasion thrown a chair at a wall in TAS Mary's class. On another occasion he was involved in a serious fight with another detainee in class, which resulted in him being hospitalised. 399 Despite all of this, the Principal refused to discuss or deal with the failure of the safety system on 10 March, even though TAS Mary repeatedly sought to raise that issue with her. That evidence put beyond any argument, that the necessary causal connection was established. Were the particulars of the charge established? a) There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer. 400 TD was 15 years of age and had been admitted to Cobham more than once; on this occasion he had been there since June 2003. He had earlier been convicted of offences and the offences with which he had been charged, were assault occasioning actual bodily harm and harm with intent to commit serious indictable offence. These were not unusual charges for detainees at Cobham. 401 TD had completed the Access programme and in accordance with the systems in operation, was regarded as posing a high risk to staff. TD had a history at Cobham which included altercations with other detainees, but not staff. There were no alerts posted for TD on 10 March, but on 9 March, he had received only 37 points under the School Rules. Teacher Ron had taught him before; he was unaware of TD's history with other detainees and had not experienced trouble with him before. It was TD's dissatisfaction with his points on 9 March, which appears to have triggered his behaviour on 10 March. 402 It was the defendant's argument that there was nothing from which it could have been reasonably inferred that TD's behaviour would escalate as it did that day. That submission paid no regard to the defendant's own system, under which TD's classification was as being of 'high risk'. Such detainees' escalation was unpredictable and always anticipated, under that system. Teacher Ron explained that he had been trained never to turn his back on any detainee and accepted that he had been trained 'to assume the worse'. TAS Mary gave evidence to similar effect. 403 The practical system in operation at Putland thus involved all detainees being classified and treated as posing a high risk to staff safety and an assessment being made each morning, at the DAP meeting, as to whether any exceptional or heightened risk was posed by any detainee that day, who would then be excluded from attending. There was also routine exclusion in certain circumstances, none of which applied to TD on 10 March. 404 This system operated on a basis whereby, under the DET/DJJ agreement which Putland operated, the general approach was, as I earlier noted that: § We believe that "one teachable moment well spent has the potential to make a difference". § We may provide the last opportunity for our clients to access education and training. § We are committed to providing equal opportunity to detainees regarding access to education and training. § Risk is inherent in the nature of our clients and the setting in which work. § We believe that risk should be managed by implementing controls rather than denying detainees access to education an(sic) training provision. 405 On A/P Amanda's evidence, in practice this meant that recent threatening and abusive behaviour, for example towards DJJ staff, even if it had resulted in confinement for a detainee, would not ordinarily lead to exclusion from school by the Principal, if the DJJ staff had assessed the detainee as ready to attend school. A/P Rebecca agreed that 'if the student is the hazard it really would be a long, long way down the track before one decides to eliminate such a person from such an opportunity for education.' 406 On Jayne M's evidence, as this 'philosophical response' was implemented in practice at Putland, it 'did not involve a consideration of the employer's duty or obligations under the Occupational Health and Safety Act'. 407 The practical system in operation was not able to always predict when detainees would engage in behaviour which would put staff safety at risk. This was why the measures envisaged in the various paper systems, to be taken to identify and prevent psychological injury from manifesting, were particularly important at Putland. Not all detainees prepared to engage in such behaviour, could be detected and precluded from attending class. On 10 March, when some 40 detainees were to attend Putland that day, the system failed to predict TD's behaviour, so that he could be excluded. 408 On any view, TD's behaviour that day put TAS Mary at risk, as I have explained. 409 It follows on the evidence that allowing TD to attend class that day thus involved 'an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour', cannot be doubted, given TD's high risk assessment under the system and the behaviour which occurred that day in class, which led to TD's removal from class at about 9.50 am. 410 TD was removed from class by A/P Amanda, after swearing at teacher Ron and assaulting him, over his concerns about the points he had earned the previous day. While directed at teacher Ron, the behaviour also put TAS Mary at risk, given her presence and how she was required to involve herself in trying to calm TD down, by soothing words and gestures and physically placing herself between TD and teacher Ron. TAS Mary did what she had been trained to do in such a situation. Even if TD's particular behaviour that day was not predicted, that it was not predictable, cannot be accepted, given the system in operation, his particular history and how all detainees were assessed as presenting a high risk, under the system which the defendant operated at Putland. The behaviour was completely predictable, even though when it would occur, was not. 411 Jayne M explained the reason for the defendant's approach at Putland: Well, it's based on a multitude of factors, it's not - you can't ever predict human behaviour. It's especially in, you know, young people. They're still developing at that developmental stage that they are at. They are still growing and defining who they are and I guess what ticks them off and what doesn't and so behaviour - when we talk about behaviour management or risk assessment, we are really talking about reducing the number of hazards that are around a young person, the types of stimuli that we know can provoke certain behaviours from young people such as drug use, bullying behaviours, et cetera. So it's more about a constant observation of a young person throughout the course of their detention order rather than saying at a particular point in time we're going to classify this kid or deem him to be this type of risk because that changes hourly within a detention centre and for young people depending on the activities and the interactions that they're having. So if we were to define a young person's risk at one point in time, we would not be real smart because that can change an hour or two down the track. 412 In that context, permitting TD to return to class unsupervised on 10 March, once violent and threatening behaviour towards staff had actually occurred, undoubtedly led to the further, or repeated materialisation of the risk which TD always posed to staff. A detainee's most recent behaviour was the best predictor of what behaviour he was likely to engage in, on the expert evidence, as well as that of the Principal. 413 TD, a high risk detainee, was removed from class over behaviour which teacher Ron was criticised by the defendant for not dealing with appropriately, or quickly enough, at least. Even though I am unable to accept that there was a proper basis for that criticism, it follows that allowing TD to return unsupervised to class on 10 March, given the behaviour he was removed for, put beyond doubt that this particular was established. 414 Nor was it to the point, as the defendant argued, that after TD's abuse and having the table pushed at him, that teacher Ron was not physically injured and was able to continue teaching. TAS Mary was also able to continue. That was fortunate, but not the result of any steps taken by the defendant, to prevent the risk of injury which TD posed from materialising. That they had been adversely affected by what had occurred, to the point of injury, was confirmed both by the reports they later provided and the evidence which they and other witnesses gave in these proceedings. 415 The next particular provided: b) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent detainee TD from being in the class. 416 For reasons which I have already explained, this particular was made out. TD could have been excluded from class entirely that day, if the heightened risk he posed that day had been detected by the morning DAP process, or by any other means. It was not. 417 A/P Amanda's evidence was that her report showed that there had been some difficulties with TD's behaviour before 10 March, given his points, but she could not recollect the details. While staff members could object to particular detainees being in their class, that was not the normal practice. If anyone had a problem with a particular detainee like TD, 'it should have been raised before the day, information that warranted it and that should be done through reports'. That was also A/P Rebecca's evidence as to how the DAP system operated in practice, so far as teachers and TAS were concerned. The Principal's evidence corroborated this. On teacher Ron's evidence, he had no reason to seek TD's removal, before 10 March. A/P Amanda could recollect no discussion as to whether TD should attend class that day, at the morning briefing. 418 Jayne M's evidence confirmed, however, that it was known that TD had been acting up for several days before 10 March. He had been excluded from school on 8 March, having attended court that day, a known generator of difficult behaviour, so that the system required all detainees to be excluded, on the day of such attendance. On 9 March, he did not obtain full points. Jayne M agreed that TD's criminal history for violence outside the detention centre, was running true inside, where he could be aggressive. 419 TD's behaviour on 10 March was thus another manifestation of violent behaviour for which he was known. It put TAS Mary and teacher Ron at risk, when it materialised and led to TD's removal from class by A/P Amanda. Despite this, TD was allowed to return to class twice more, unsupervised, to confront the staff again. That should not have occurred, under the defendant's system. 420 There was no doubt that he could have been excluded and should have been, from the time he was first removed. It was the Principal's evidence that returning a detainee to class, after he had been removed, was a decision for the A/P on duty to make. On A/P Amanda's evidence, she had made no such decision to return TD. On Mr Muir's evidence, it was unsafe for TD to have been able to return to class, unsupervised. 421 Given the Principal's evidence that in her view, what TD had done had amounted to a chargeable assault, that he should have been removed from class under the system in place and kept out of that classroom on 10 March once removed, is not open to doubt. 422 It follows that the defendant's submission that the evidence supports the finding that in relation to TD attending school on 10 March 2004 there was 'nothing to indicate to the Defendant that he was unsuitable to attend class' cannot be accepted. The defendant relied on the conclusions reached by Kavanagh J in Johnson at [229] - [240], that a particular allegation that a student with a history of violence ought not to have been enrolled, had not been made out. In this case, it was not a question of TD being enrolled at Putland, but being permitted to attend class on 10 March, which was in issue. The particular was made out beyond question, especially when it is considered that TD was permitted to return unsupervised, after he had already been removed, after having put the safety of the staff in the class at risk. That is quite a different question, to that dealt with in Johnson. ii) Failing to have a Juvenile Justice Officer present in the class room to support and monitor students, classes and program delivery staff. 423 The evidence was that a DJJ officer could have been placed into the class with TD on 10 March. This was a control put in place on some occasions at Putland, for example in relation to the detainee who was recaptured after the escape and on the evidence, could have been implemented, if it was judged necessary, in the case of TD. The defendant's case was that there was nothing about the information available in relation to TD, which on any reasonable view, would have required such a step to be taken in relation to TD on 10 March. 424 Given his behaviour on 10 March, if TD was to be returned to class after he had been removed, he ought not to have been able to return unaccompanied. He had already assaulted the teacher and put TAS Mary's safety at risk. Under the DET/DJJ arrangement, DJJ staff were responsible for ensuring physical safety at Putland. That the defendant should not have allowed TD to return to class without such supervision, in the circumstances, is not open to doubt. 425 In her evidence, Jayne M agreed that having a DJJ officer present in class would have added a layer of safety, allowing immediate removal of TD if there was any threat to staff, although questions of cost had to be considered. That was undoubtedly correct, given the way responsibility for ensuring DET staff safety was arranged at Putland. Jayne M had experienced such a system operating at Minda Detention Centre, but it was discontinued there because it was found it 'demeaned' teachers. Jayne M explained that this meant that students would defer to DJJ staff and make requests of them, not the teacher. By agreement between the DET and the DJJ, that system had been discontinued. 426 This idea of teachers being demeaned by DJJ officers present in their classrooms, accorded with A/P Jon's attitude, that he felt safe at Putland, given the DJJ staff in close proximity and in his experience, that teachers felt awkward, with someone observing what they were doing and how detainees responded to DJJ staff when in class. 427 Teacher Ron's evidence, by way of contrast, was that he felt safer, when a DJJ officer was present in class. The defendant argued that this attitude ignored the presence of a TAS in class. So, however, did A/P Jon's. There was always another adult in class with teachers at Putland, staff were never permitted to be alone with detainees. TAS staff were not, however, present to ensure safety, that was a role for DJJ staff. In any event, TAS Mary had also experienced situations where a DJJ officer was present in class and she too, then felt safer. Jayne M agreed that such an arrangement added a layer of security. 428 The evidence was that at other detention centres such systems operated, for example at Reiby, where younger detainees, in the worst category of offenders, were housed. It was explained that the reason that system operated there, was to provide a second pair of eyes, so that a student could be removed, if required. Had there been such a second pair of eyes in class on 10 March, undoubtedly TD's behaviour could also have been more swiftly dealt with by a DJJ officer and his repeated return to class prevented. 429 Mr Muir's evidence was that while there were circumstances in which having a DJJ officer in class was necessary, on other occasions it was counterproductive to the learning environment, and unnecessary, in order to ensure safety. Classes at Putland already comprised six detainees and two adults and detainees could feel overwhelmed, by more adults. In his opinion, DJJ officers in close proximity outside the class, could achieve the same result in terms of safety. That was not the case on 10 March. 430 It cannot be overlooked that under the defendant's system, TAS staff were not responsible for ensuring teacher's safety, when detainees engaged in violent and threatening behaviour, nor were teachers responsible for TAS safety. DJJ staff had to be called for, to deal with such behaviour. A/P Jon's attitude was that they were close enough to provide such assistance; teacher Ron's attitude was that he felt safer, if they were in class. No doubt the attitude which different staff have to question such as this, reflects their own experiences. 431 On the evidence as to what occurred on 10 March, there can be no question that had a DJJ officer been present in class, TD's initial behaviour, when he threatened and assaulted teacher Ron, would have been observed by a DJJ officer with custodial responsibility for detainees. That behaviour could then have been dealt with immediately and his return, after he was removed by A/P Amanda, precluded. 432 Why this situation occurred was unexplained. It was a serious departure from policy, which was never investigated, or addressed at Putland, despite teacher Ron and TAS Mary's enquiries, which were simply rebuffed. It was Jayne M's evidence that a detainee returning unaccompanied to class was a security issue, but she was unaware of any investigation which had resulted in relation to the events of 10 March. Nor was Mr Muir aware of what had occurred. Had the incident been the subject of an investigation, as it undoubtedly should have been, no doubt what had given rise to the problem would have been uncovered, so steps could have been taken to ensure that further difficulties did not arise and so that staff could be assured that their safety would not be so compromised again. 433 Be that as it may, it cannot be doubted on the evidence that this particular was established, in circumstances where TD was twice allowed to return to class unaccompanied, the second time in company of another detainee, after having been removed in circumstances where he had assaulted teacher Ron. iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee TD, which required consultation with the teacher and the TAS allocated to the class, provision of the history of TD, assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. 434 This particular was concerned with the defendant's failure to undertake a formal risk assessment in relation to TD, using a tool such as Hazpak. This would have involved assessing the risk TD posed while taking the General Education class in which he was participating on 10 March, 'according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk'. 435 At Putland such assessments were not undertaken in March 2004, despite what the defendant's policies required. 436 The Taking Safety Seriously policy introduced by the DET after a teacher was murdered at Yasmar Detention Centre, required, amongst other things, that students assessed as high risk, be only placed in low risk programmes and that 'there be daily review and monitoring of the student's behaviour'. 437 Jayne M's evidence was that despite all detainees at Putland being assessed to be of high risk, they all 'brought a different level of risk with them'. She also agreed that on a particular day, the overall risk posed by a class, depended on its makeup. While morning briefings and Friday meetings looked at class composition, there was no formalised individual, or class risk assessment, which was made by way of an assessment of the detainees' history of violence and threatening behaviour, or lack of it, outside detention and their history inside, as this policy envisaged. 438 It follows that while all detainees were assessed to pose the same high risk, that was not a correct reflection of the actual risk which any individual detainee posed on a particular day, or any combination of detainees in a class. In some circumstances the high risk which all detainees were assessed as posing, was heightened. That view accorded with Professor Tennant's evidence that all detainees posed different risks, which should have been assessed. 439 The Behaviour management - Managing Difficult Behaviour Policy, provided: The link between case management, risk management, and behaviour management demands the use of a range of options to manage the behaviour of individual detainees. Not all detainees are the same, therefore, not all detainees respond to the same behaviour management strategies. The likelihood of a detainee reducing problematic, challenging and difficult behaviour is strongly influenced by responses that are designed on the basis of his or her individual needs and strengths. A range of options for dealing with difficult behaviour already exist in juvenile justice centres, and each centre may develop additional strategies, as long as they demonstrate adherence to detention legislation and department policy. Options that already exist are: § Continued negotiation or mediation § Referral to a program, including groupwork § Referral to counselling - group or individual § Development of a behaviour management plan § Minor misbehaviour § Serous misbehaviour § Referral to the police, which includes the option of youth Justice Conferences (where the behaviour can be alleged as a criminal offence) § Re-classification § Another type of centre-based option. 440 The approach adopted in practice at Putland meant that the idea inherent in Hazpak and the Managing Difficult Behaviour Policy, that differing levels of control should be applied to detainees, depending on the actual risks they individually posed, did not operate formally at Putland. Nor was TD the subject of a behaviour management plan, as envisaged in the DET Legal Issues Bulletin of January 2004, concerning the collective use and disclosure of information about students with a history of violence. 441 The morning DAP assessments were not conducted by reference to the Hazpak document but by reference to information conveyed orally to staff from the Centre logs and alerts, which were directed to identifying heightened risk that day. Those assessments proceeded on a foundational assessment of detainee risk, which did not necessarily reflect the true risk generally posed by a particular detainee; they were all treated the same. The problem, it seems to me, with that approach, is that it had the potential to either under, or overstate the risk which a particular detainee generally posed, thus impacting on an assessment of whether, in truth, any heightened risk existed on a particular day, either from an individual detainee, or a particular group or combination. 442 At the DAP meeting, oral information was conveyed to staff as to recent behaviour in the Centre, while away from Putland in their units, as well as alerts in relation to up to 60 detainees who were to attend that day. This was typically considered by staff in some 30 minutes or so, although the daily meeting could go longer if necessary. On the defendant's own case, its system of controls proceeded in the knowledge that its approach to risk assessment at the morning DAP meeting, or otherwise, was incapable of accurately predicting which detainees might, that day, put staff safety at risk, so that such detainees could all be excluded from class. The controls it put in place were thus necessary to deal with risks which it was known would materialise in class from detainee misbehaviour. These controls were directed to dealing with such risk, whenever it materialised, the defendant never knowing when that would occur. 443 There were some obvious deficiencies with the approach adopted in practice revealed by the evidence. The defendant's Taking Safety Seriously policy provided for a 'Risk Management Student Behaviour File' to be created for each detainee. On Jayne M's evidence, while this was in use at Yasmar, it was not used at Putland, because all programmes offered, there were low risk. She explained as to programmes offered that: Because we remove objects and, first of all, we remove any objects that can be used as weapons from the programme. Where the programme is situated, we ensure that that's safe, that there's appropriate levels of supervision, that young people who are deemed to be upset or out of sorts or angry, frustrated, they immediately prior to a programme are excluded from participation in the programme. There are certain searches that we conduct on programme areas to make sure that there is nothing concealed within the programme area. This is all written up and it's risk assessed as being a low programme, as I said before, so that high risk young people can participate. 444 The Principal's evidence, by way of contrast, was that the Taking Safety Seriously policy did apply at Putland. The difficulty with that evidence was that the policy did not contemplate that Risk Management Student Behaviour files would not be created for detainees at Putland. The policy required them. Their purpose was to provide staff with a summary of a detainee's offence history, as an indicator of who might be potentially dangerous, as well as indicating who had been physically or verbally violent in custody. The policy also noted that 'Any change in the risk of behaviour should be recorded on the student profile and the necessary program placement changes made. Staff should be immediately informed of the change.' 445 While written information as to a detainee's offence history was available to staff at Putland, if they pursued it, it was not routinely provided as this policy contemplated and, to the contrary, on the evidence of A/Ps, staff were discouraged from pursuing that history. Detainees were all regarded as being entitled to access to an education; they had to be treated as students and were entitled to be treated as 'innocent, until proven guilty'. 446 This was so, even though records maintained by the DET identified which detainees were serious offenders, recognised as being likely to be potentially dangerous while at Cobham. Yet, on the evidence of the Principal, this was recognised as a Juvenile Justice category and not relevant to Putland. On Jayne M's evidence, such data was used by the DJJ as a predictor of potential violence. This information was computerised and all Principals and A/Ps were given access to it. On the Principal's evidence, such information was not regarded as relevant to Putland staff, who were not provided with it. This was consistent with the evidence of TAS Mary, who said that it would have been her preference to have been provided with such information about detainees in her class. 447 The upshot of the evidence is that it must be concluded that the Taking Safety Seriously policy was not, in fact, operating at Putland, as was Jayne M's evidence. 448 The difficulty with this was that there was a high detainee turnover at Putland and many of those there had already been convicted of offences, some serious offences involving violence. That, no doubt, was why this policy contemplated an ongoing Student Behaviour file being maintained, in order to ensure that relevant information was routinely provided to staff. Such an ongoing history was one relevant predictor of who might engage in behaviour which would put staff safety at risk, at Putland. Given the way in which information about recent detainee behaviour was conveyed orally at morning meetings, in a situation of high detainee turnover, of necessity, the system operating in practice relied on staff involved in the morning DAP assessment process and then working with detainees in class, remembering what they had been told about detainee conduct, over time, instead of having to hand the summary document which the policy contemplated they would have access to, when they were given information about recent behaviour. They were not routinely provided with such information even though the defendant's policies also identified that offence history, was a risk indicator. 449 Instead, all detainees were assessed as giving rise to high risk that they could injure staff by their behaviour. Only some detainees were classified as serious offenders, having been charged with, or convicted of, offences involving violence. That was notified by the alert system, but even this did not give rise to any higher, or different risk assessment for such detainees, or any different approach to controls for their potential behaviour. On A/P Amanda's evidence, nor did actual violence while in custody alter detainees' risk assessment. Such behaviour was notified to staff, through the alert system and the morning briefing process, but that did not necessarily give rise to any extra controls being implemented. 450 The Principal said that the principles underpinning the Hazpak tool were applied at the morning DAP meeting, but if the Hazpak tool had been strictly applied, it would have been impossible to operate the school. On the evidence it cannot be accepted that those principles were in effective operation in March 2004, given the approach adopted, which did not differentiate between the undoubtedly varying risks which different detainees posed. 451 The defendant argued that the Hazpak tool was simplistic and that it, in fact, operated a much more complex risk assessment system. The defendants 2000 Occupational health, safety & injury management - a guide for the principal or manager - policy, nevertheless, contemplated that the Hazpak tool would be used at Putland. It involved differing levels of risk being identified and differing controls being put in place, to deal with the level of risk actually posed by a particular detainee. On the evidence, I am unable to accept that it was a simplistic approach to assess the actual risk which a detainee posed from the outset, rather than to assume that all detainees posed the same risk. Indeed, it was Jayne M's evidence that it would have been wrong to make such an assumption, detainee risk changed all the time and had to be constantly re-assessed. The records of the Safety Committee also recognised the need for detainee risk assessments to be addressed, but it was not. 452 Hazpak also contemplated that the highest level of risk could require elimination of the risk - at Putland in the case of a detainee, requiring the detainee not be given access to class, at all. 453 Such eliminations did occur at Putland. Under the system all detainees were, for example, routinely excluded on days that they attended court, given the assessment that this posed a heightened risk. Detainees could also be excluded by Cobham staff and by the Principal, if they took the view that their behaviour warranted it. A/Ps could remove them during the course of the day, if misbehaviour occurred. 454 How the possibility of exclusion, at the request of Putland staff operated, was more problematic. On the defendant's approach, it could arise as the result of discussion and agreement amongst staff at morning meetings, when recent behaviour was being considered. On the evidence of the A/Ps, however, such a removal on staff initiative had to be raised by staff beforehand, and had to be supported by a documentary case and could not simply be proposed and accepted at the morning briefing. Instead, staff were told the detainee would go to class and would be monitored over the course of the day. 455 This approach was also reflected in the way the defendant's case was put, namely that it operated a complex risk assessment process under the control of senior managerial staff, which provided for continual assessment of detainees, over the course of 24 hours and, that given the nature of the risks involved, the determination of what controls should be put in place, could not be left to less senior staff, on an ad hoc basis. 456 On the defendant's approach, under its system, risk assessment was flexible and ongoing, over the course of 24 hours, with exceptional risk being identified and dealt with at the morning briefing and if misbehaviour occurred during the course of the day, through the duty A/P. The Principal's explanation was that the best information to predict behaviour was 'the closer it is in time to now or the next minute, the more relevant it is in terms of prediction and if the environment is exactly the same and exactly replicated then, it's much more relevant than if it's not'. Some of the experts agreed. 457 On that approach, it plainly became apparent in the first lesson on 10 March that TD presented an ongoing, heightened risk that day, which led to his removal from class. That risk had not been identified beforehand at the DAP meeting. At Putland, detainee dissatisfaction when they did not gain maximum points and the privileges which accompanied them, was a known trigger for misbehaviour towards staff. The trigger for TD's misbehaviour that day was dissatisfaction with points earned the previous day. Removal from class meant that again, he could not earn maximum points that day, again heightening the risk which he posed, given his already existing dissatisfaction with the points earned the previous day. 458 On any view, behaviour putting staff at risk of injury having materialised, TD's return to class should then have been precluded. Even on the defendant's case, such behaviour should have resulted in his exclusion. 459 What the defendant's system did not ensure was a proper consideration of whether a failure to gain points under the system, might be likely to trigger behaviour such as that which TD engaged in on 10 March, which put staff safety at risk. The points system was supposed to encourage good behaviour. It was well known that was not how some detainees viewed the system and that they tried to manipulate and threaten staff to ensure that they received maximum points. The operation of the points system was thus an obvious trigger for heightened risk, which was not recognised as giving rise to any need to consider additional controls on 10 March in the case of TD, despite his known dissatisfaction the previous day. 460 The risk flowing from the behaviour TD was known to be prone to, materialised in that class and still, the controls put in place then by the defendant, proved inadequate to prevent him returning twice more to class, so that the risk materialised again. The ongoing 24 hour assessment process on which the defendant relied, failed to ensure safety. It must follow that this particular was established. 461 Afterwards, a behaviour management plan was produced for TD. The defendant argued that this was not relevant to the events of 10 March, the plan not then existing. That submission cannot be accepted. Consideration must be given both to the defendant's acts and omissions. There was no question that such a plan could have been created for TD before 10 March. It was required under the defendant's policies and it was even argued by the defendant that behaviour management plans were a part of how risks were identified and controlled at Putland, detainee violent or anti-social behaviour, being controlled by the practical system in operation at Putland, it not being able to be eliminated. 462 There is no question then that given his known history of violence while in detention, that the behaviour management plan produced for TD after 10 March, should have been in place as part of a proper assessment and control for his behaviour beforehand. It is unnecessary to outline the system by which such a plan was produced. The relevant policies provided for such a plan, as an appropriate control mechanism for detainees with behavioural issues. TD was such a detainee. 463 The plan of 16 March itself demonstrated that by 10 March, such a plan should have been in place. It indicated that: § Be consistent and clear with TD. § Offer TD choices for his behaviour, and consequences for each choice. For example: "If you follow staff direction, you will earn higher points and get a later bedtime, if you chose(sic) to ignore staff, you will not earn the points and get a 7 o'clock bed." § Minimise the use of the confinement as punishment. As TD is only 15, he can only be confined for three hours and this does not bother him. § Where possible, manage his behaviour through the incentive scheme, as TD dislikes 7 o'clock beds. § Encourage TD to recognise that he can control his anger, and acknowledge any efforts to do this. § Try to diffuse any situation that could potentially escalate into aggressive behaviour, by removing TD from the situation. § Acknowledge and encourage positive behaviours displayed by TD. § Please complete behaviour observation sheets, noting TD's response to staff, interaction with peers and efforts to control his anger. 464 It follows that it must be concluded that the approach adopted to risk assessment on 10 March, failed to ensure safety and that this particular, at least so far as TD was concerned, was made out. 465 I do accept the defendant's case, that nothing in relation to class composition, seems to have been connected with the risk to safety which manifested that day, so far as TD was concerned. Class composition was generally determined at Friday meetings of staff and daily, as detainees came and went under a system which it is unnecessary to explore further. While I accept that the evidence also demonstrated deficiencies and failures by the defendant in this respect, there was no evidence that any change in the composition of this class, or that class composition itself played any role in the risk to safety which materialised on 10 March. It is unnecessary therefore, to further deal with this evidence. This aspect of this particular was not made out. iv) Failing to provide adequate information in relation to the history or incidents of actual violence, threatened violence, anti social behaviour and/or psychological information of detainee TD and incident prevention or reduction strategies. 466 On the evidence, there was a plethora of information maintained by the DET and DJJ about individual detainees, their offence history and their behaviour history. Some written records kept in files, were available to be consulted by DET staff, but this was not encouraged. Teachers also had an obligation to have an understanding of detainees taking their classes. Current information as to detainee behaviour was conveyed orally, at morning DAP meetings and through the alert system. Staff were, however, not encouraged to find out the details of what detainees were charged with. Of necessity, this system relied on staff recollecting relevant information, especially about ongoing detainee behaviour, in a context where detainee turnover was high and class combinations altered frequently. 467 The DJJ maintained a computerised system, CIDS, explained by Jayne M in her evidence. Amongst other things, it included a summary of a detainee's violence in custody, which was provided to DJJ staff, who had to deal with that detainee, in order to ensure staff safety, when dealing with the detainee. That information was not provided to Putland staff, instead they were given oral information daily, as to recent incidents, recorded in the Centre Log, which was considered at the DAP meeting. 468 The DET Taking Safety Seriously policy also envisaged that a written summary would be maintained and provided to staff as I have already outlined. In March 2004, it was not operating at Putland. Given the evidence of detainee turnover at Putland, that the system in operation was an inadequate means of conveying necessary information to staff, who had to go to class with high risk detainees, prone to behave unpredictably, was undoubtedly established. v) Failure to have adequate emergency communication equipment and systems for employees to summons help. 469 The system as to the defendant's radio and duress alarm systems and how they failed to ensure that help was provided to TAS Mary and teacher Ron on 10 March, when it was needed, put this particular beyond doubt, for reasons which I have earlier outlined. 470 Only teachers had access to the radio system. It could not be used if there was already traffic. Teachers had a discretion not to use it, if they thought its use might inflame a situation with a detainee. Both teachers and TAS had a duress alarm. A/P Amanda, Sharan and other witnesses gave evidence as to circumstances where the system had experienced problems. Staff were instructed to press their alarms again, if there was no response. 471 Despite the alarm sounding on 10 March in the admin office and being heard, help was not despatched. The system was later altered so that alarms also sounded in the DJJ office, thus removing the need for Sharan to physically call for assistance, if the radio traffic prevented her calling for DJJ help. Personal pagers were also introduced so that advice of assistance being required, could be given by pager. A fixed duress alarm system was also then installed. 472 On the evidence, staff could also seek assistance from DJJ officers by calling out to them from their classroom. There is no reason to doubt TAS Mary's evidence, that on 10 March, while she was dealing with TD, when he then returned unsupervised to class, she could not do so. This was because she could not get to the doorway, given where TD was standing and because she was concerned that she was dealing with some one who was trying to 'deck' her or teacher Ron. 473 As I have noted earlier, undoubtedly it would have been better if TAS Mary had called out to DJJ staff when she first persuaded TD to leave. Her experience that he would be seen and dealt with by the DJJ officers on duty nearby, once he left the class, clearly had a proper foundation given the defendant's system. I also accept that on the second occasion TD returned, she could not call out, given where TD and SS were then placed. Again, I am entirely satisfied that this particular was established. v) Failure to provide adequate information, instruction and training including on self defence and/or behaviour management. 474 That the defendant provided both PART training and crisis intervention training for its staff was established. Not all staff at Putland had received that training. Staff had requested the training but it had not been provided. The Principal's evidence was that she had looked into it, but had been unable to arrange for it. TAS Mary had had some training, but it was out of date. Teacher Ron had none. Such training was routinely provided to DJJ staff. Given the way in which TAS staff and teachers were left in class to deal with detainees who were threatening them or other detainees, until DJJ assistance was provided, that they should have had such training if safety was to be ensured, cannot be doubted. 475 In her evidence, Jayne M said that DET staff were not required to restrain detainees, but were told that they could defend themselves if threatened, when no DJJ officer was present. She agreed that DET staff were not trained in self defence and that it was unsafe for them not to have been provided with such training. 476 Given the high risk detainees they were called on to work with, that was, undoubtedly, correct. Further, contrary to Jayne M's understanding, a DET policy in evidence, communicated to staff as applying at Putland, did oblige staff to physically intervene, if a detainee's safety was put at risk by another detainee. It provided: The department and its staff owe a duty of care to students to take reasonable care to protect them against risks of injury which are reasonably foreseeable. This duty extends to taking reasonable care to prevent a student from injuring him or herself, injuring others or damaging property. In order to meet this duty, school staff may be required to consider the need to physically restrain students. Any decision taken by staff to physically restrain a student should be exercised only in those circumstances where there is a real and immediate threat of injury to a person or serious damage to property and there is no other practical way of preventing the likely injury or damage. Staff must not jeopardise their own safety in such situations. Staff should only physically intervene if they are confident they can do so without being injured. In this context it is important that staff seek out and implement any relevant departmental or school guidelines, strategy or advice for managing student behaviour. Any physical restraint of a student should be only that which is reasonably necessary in the circumstances to prevent the feared injury or serious damage. What is "reasonable" physical restraint will vary from case to case depending on issues such as the age, size and strength of the student and staff member, what the student is actually doing that gives rise to the fear and where the behaviour is occurring. It is stressed that staff must not use physical restraint if this places them at risk of injury. Specific circumstances where staff may be required to physically restrain students 1. Behaviour by a student that threatens the safety of other persons The department's duty of care towards its students means that staff have an obligation to take positive action in situations where student's behaviour threatens the safety of other persons. The level of intervention will range from verbally directing the students to stop through to physical restrain of one or more of the students involved. The department's obligations may not be met if staff wait until the behaviour subsides before taking action. The action that staff may be able to take however will be dependent on the nature of the particular incident. Physical restraint should only be used if other measures have not or will not prove effective in the circumstances. If physical restraint is considered necessary, it must be reasonable in the circumstances and staff must not put themselves at risk of injury. 2. Behaviour by a student that may lead to self harm or injury As in 1, the department's duty of care towards its students means that staff have an obligation to act in situations where a student's actions may cause the student harm or injury. It may be the case that a student's actions occur as a result of both voluntary and involuntary behaviour. The same obligations and considerations as outlined in 1 apply to situations of student self harm or injury. 3. Physical altercations between students. As in 1 & 2, the department's duty of care towards its students means that staff have an obligation to take positive action in situations where students become involved in physical altercations with each other. The department's obligations will not be met if staff wait until the altercation concludes before taking action. The same obligations and considerations as outlined in 1 & 2 apply to situations where physical altercations between students occur. ... It is important to remember: 1 Physical restraint of students should only be exercised as an absolute last resort. 2 Physical restraint should only occur where there is an immediate risk of injury to persons, including the student, or an immediate risk of serious damage to property. 3 Physical restraint should only be what is reasonably necessary having regard to the specific circumstances. 4 Physical restraint must not be used if there is a risk of injury to staff. 477 While it was submitted that account also had to be taken of the memorandum of understanding between the DJJ and the DET, under which DJJ staff had custodial responsibility for detainees and ensuring safety, the fact remains that staff at Putland were provided with this Departmental bulletin and were required to keep it in a folder, because it applied to them at Putland. On TAS Mary's evidence, staff acted in accordance with it. She had done so herself. 478 On teacher Ron's evidence, while he was not ordinarily obliged to restrain students, on 10 March, if TD had attacked TAS Mary, he would have tried to stop him. That evidence must be accepted. 479 DET staff did not receive training in how to restrain detainees, as did DJJ staff, even though they had been given training in how to deal with a hostage situation. The evidence was that PART training included training in how to de-escalate an event that may lead to a critical incident, plainly relevant training given how safety at Putland was arranged. 480 On TAS Mary's evidence, in 1999, she had tried to separate two detainees when there was an altercation which resulted in one attempting to strangle the other. She understood that she had an obligation to intervene in a situation of the kind with which she was confronted, having already sought assistance by use of the duress alarm. 481 The failure of the system on 10 March, demonstrated the necessity for such self defence and restraint training, as an available control for circumstances where staff were confronted with violent and threatening behaviour from detainees, when DJJ staff were not present in class to deal with such behaviour. The evidence of incidents which had materialised before 10 March, when the DET policy which required staff to physically intervene, if other detainees were at risk of physical injury, resulting in TAS Mary's intervention and herself then suffering a slight physical injury, showed that the necessity for such a control, ought to have been well recognised by then. In the light of such experience, that this training should have been given before March 2004, is not open to doubt, given the system which operated at Putland, if safety was to be ensured when the classroom staff had to deal with what confronted them, until help arrived. After March 2004, steps were taken to ensure that Putland staff received such training. 482 It follows that there can be no doubt that this particular was established. c) The psychological injuries to TAS Mary were a manifestation of the risk. 483 This, too, was established beyond doubt. Not only was TAS Mary diagnosed as having suffered such an injury, the defendant never contested its workers compensation liability in respect of these injuries. That TAS Mary continued to work until after the events of 15 March unfolded, cannot, as the defendant argued, permit the conclusion that the events of 10 March did not lead to any psychological injury. TAS Mary described her state after the confrontation with TD to Ms Koussa. There is no reason to doubt what she reported. It was then that TAS Mary began feeling unwell, even though she did not seek medical attention until after the events of 15 March. Ms Koussa's report noted: TAS Mary reported that the night of 10 March, 2004 she dreamt that the Asian student's [TD] nails were steel and that "he was ripping my throat out". She reported that all of the following day she felt as if she were in "a daze". TAS Mary reported that that night (10 March, 2004) she had also become preoccupied and distressed about two critical incidents that had occurred in February and March of the previous year. 484 That the 10 March incident contributed to the psychological injury sustained by TAS Mary, was thus entirely consistent with her own accounts, including that first given to Ms Koussa. This was corroborated by the evidence of A/P Rebecca, as to TAS Mary's state that day. It was also consistent with what the Principal told Ms Koussa about TAS Mary. Both her GP and treating psychiatrist Dr Proberts diagnosed a psychological injury. Dr Proberts' view was that she was suffering from post traumatic stress disorder. In her evidence, Ms Koussa explained that the dreams TAS Mary described, were the result of experiencing a traumatic incident, which begin to emerge, when a person's coping mechanisms have been breached. 485 Jayne M's evidence was that it was known that staff at Putland could be exposed to actual or threatened violence on a number of occasions. That was certainly TAS Mary's experience, before 10 March 2004. Jayne M also said that in her own experience, this could have a cumulative impact on the psychological health of such a staff member and that in the spectrum of minor to more serious violent incidents, it could even be an incident that was relatively minor, that was the straw that broke the camel's back, so far as sustaining an injury was concerned. The expert evidence supported that view, as did various of the defendant's policies, I have already dealt with. 486 Jayne M did not herself regard the events of 10 March to be minor. The OHS Act obliges employers to be proactive, in ensuring staff safety. The expert evidence confirmed that it was not possible for an employer to predict the exact incident which would 'push someone over the edge', so that a psychological injury would result. That was recognised in the defendant's own policies, which thus required managers such as the Principal, to be looking for signs that employees were not coping and to deal with them, to prevent an injury occurring. The Principal's evidence was that even before the events of 10 March, she had detected that TAS Mary was no longer coping at work. The defendant's policies envisaged that steps would be taken to deal with such a situation, if detected. No such steps were taken, even despite the views the Principal held about TAS Mary. 487 It follows that the defendant's submissions that 'it was not possible for the employer to have anticipated and put in place measures to prevent the injury that was ultimately sustained by TAS Mary from having occurred', may not be accepted. The defendant had a paper system in place, designed to ensure that it satisfied its obligation to be proactive in ensuring safety and protecting employees from suffering psychological injury. It was not operating at Putland, with the result that the Principal took no steps to deal with what she had herself perceived about TAS Mary and her vulnerability to injury. 488 The expert evidence called by the defendant, sought to establish that it was not possible for the defendant to have predicted TAS Mary's vulnerability to any psychological injury, and that it could not have been predicted that the events of 10 March would have led to such an injury. Professor Tennant, for instance, expressed the opinion that while it was a stressful day, it was not of such significance as to indicate psychiatric morbidity and would not cause enduring psychological symptoms in the average person, although his view altered somewhat, given the different version of the events in question, put to him in cross examination. 489 In this case it was necessary to approach the expert evidence with some caution. There were numerous issues between the parties as to what had occurred on this day. While there was a contemporaneous report as to TD's behaviour, it did not deal with the entirety of the problems encountered by the staff, as the result of the failure of the safety systems that day. Despite what was reported to the defendant by Ms Koussa, the defendant disputed that such failures had occurred. That was so, even though it had failed to conduct an investigation into the incidents which occurred with TD that day, in TAS Mary's class, as its own policies required. 490 Of necessity, the expert opinions expressed, thus rested on the factual information provided to them. The defendant's approach to those facts, departed in a number of significant ways from the facts found as the result of these contested proceedings. The result was that the opinions expressed in various written reports, were of more limited assistance than they would have been, had there been no question as to the events of 10 March. 491 Also to be considered is that in cross examination, the experts agreed with various propositions put to them by the prosecutor, which threw a different light on the risk of psychological injury, flowing from what TAS Mary experienced that day. 492 For example, Professor Tennant was not made aware of the failure of the defendant's safety systems that day. The Professor was aware that the system provided for back up - a radio and two duress alarms, but agreed that the circumstances with which TAS Mary was actually confronted with that day, were not trivial. Still, Professor Tennant was of the view that what had occurred was not significant enough to cause enduring psychological injury in the average person, but that it might cause brief psychological distress. Other experts finally did not share that view, as I have earlier explained. 493 Despite the Professor's opinion, I am well satisfied that the evidence established, to the requisite standard, that the events of 10 March contributed to the psychological injury which TAS Mary suffered. The events of 15 March 2004 - Matter Number IRC 1390 of 2006 494 The offence charged was: On 15 March 2004 at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training, and Department of Juvenile Justice) whose address is 35 Bridge Street, Sydney and 477 Pitt Street, Sydney in the State of NSW being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary and TAS Su, in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. 495 Again, what has to be determined is whether the defendant failed to ensure TAS Mary and TAS Su's safety, as alleged; whether they were exposed to the risks in question at work and if there was any causal connection between those risks and the defendant's acts and omissions. 496 Again, I am satisfied, for reasons which I will explain, that the charge was made out, and that the necessary causal connection between the defendant's acts and omissions was also established, to the requisite degree. While it was the view of experts called by the defendant, that what occurred on 15 March was relatively minor and unlikely to cause psychological injury, it was the view of DJJ staff such as Jayne M, that BH's misbehaviour that day was at the upper end of the seriousness at Putland. That evidence must be accepted. While what occurred on the day did not involve system failures such as had occurred with TD on 10 March, nevertheless, that staff including TAS Mary and TAS Su, were exposed to the risk of injury was established. It was well understood by the defendant that repeated exposure to such incidents put its employees at risk of psychological injury. Despite the heightened risk of such an incident identified on 15 March, no steps were taken to implement any additional controls, to prevent such an incident occurring. Given what unfolded in relation to BH that day, that this offence was committed as charged, cannot be doubted. What was the risk to which TAS Mary and TAS Su were exposed? 497 The report provided by teacher Ron and TAS Mary as to the events of 15 March, is earlier set out. BH, who was 17, had been admitted to Cobham on 3 March 2004, having earlier been on remand at the Centre in January 2004. He was a serious offender. It was well known to the defendant that he was a detainee who had engaged in violent behaviour while in custody, putting staff safety at risk. On the previous weekend, he had been violent towards DJJ staff, over dissatisfaction with the points which he earned under the points system. He had been put in confinement by way of punishment. All detainees, including BH, were assessed as requiring 'very, very close' supervision on 15 March. Despite this, no additional controls were put in place, to ensure that BH did not engage in behaviour in class, which would put staff safety at risk. 498 In the General Education class that day, despite having engaged in behaviour which would have had the result of him again not earning maximum points, BH was removed and then returned to class. There he learned that he would not earn maximum points. He then engaged in behaviour which exposed the staff present in class, including TAS Mary to the risk of injury. Again, TAS Mary, attempted to calm BH down. She failed. BH's behaviour included throwing a chair with considerable force at teacher Ron, narrowly missing his head. With difficulty, he was then removed from class. Professor Tennant's opinion, that this incident was trivial, simply cannot be accepted, on the evidence. Indeed, in cross examination, he proffered the opinion that a detainee throwing a chair with some force at a teacher's head and narrowly missing him, would probably be a police charge. That was also Jayne M's view. 499 BH then physically injured DJJ staff in the course of being removed from the quad, for which he was later charged with assault and transferred to Kariong. The difficulties which DJJ staff had in dealing with BH were observed by other DET staff, including TAS Mary and TAS Su. In the circumstances prevailing at Putland, I am satisfied that, thereby, they were also put at risk of injury, these risks undoubtedly arising at work. 500 TAS Mary's evidence put in context the nature of the risk to which she was exposed. She explained that from the beginning of the class, the detainees were not happy with being there. They did not settle. Despite interruption, teacher Ron explained the School Rules, that having been emphasised by the Principal at the morning briefing. BH's response was insolent, 'We know the school rules, sir.' He and another detainee repeating 'we know the effing rules. Fucking rules'. A geography lesson was planned, concentrating on the Middle East, given the composition of the class. It was an Impact class required to attend a General Education class, as a consequence of the building programme and the aftermath of the escape on 10 March. There were insufficient classrooms to operate Putland normally. Other detainees, who were not interested, were removed by A/P Sue. 501 BH initially participated in the class, but then announced he needed to go to the toilet, so TAS Mary rose to go to the doorway to call a DJJ officer, with teacher Ron telling BH that they had to arrange for him to go. Detainees were not permitted to leave a class unaccompanied to go to the toilet. BH did not wait, but went out past TAS Mary, marched to the toilet, beckoning a DJJ officer to accompany him. When there was no sign of BH returning, TAS Mary looked to see him at the pergola sitting with a DJJ officer and TAS Su. When she called to BH, he told her 'I'm speaking to Su.' BH then returned to class by himself, unescorted. Teacher Ron told him that leaving the room without permission would incur a five point penalty, in order to deter him from leaving again. BH claimed that he was not aware of this and was unhappy with what he had been told. BH said 'I'm not going to lose points you fucking dog. I'm not going to lose points for going to the fucking toilet. I'm not going to lose fucking points. I'll tell you I'm not going to. That is it'. 502 Teacher Ron then called A/P Rebecca for assistance because TAS Su was tied up. A/P Rebecca took BH out and returned him about 10 minutes later. On her evidence, TAS Mary hoped that he would be kept out longer, because he had been 'full on' and she had felt threatened by him, explaining that he was a very, very threatening young man by reputation. On her evidence, A/P Rebecca had asked the DJJ officer to remain nearby, being concerned about BH's potential behaviour. While he was gone things had settled in class and when he returned, TAS Mary observed a DJJ officer following he and A/P Rebecca. A/P Rebecca told teacher Ron that BH had indicated that he would improve and that she would stay to make sure that he settled down. BH then asked teacher Ron what his points were and was told that they would be discussed at the end of the lesson. After about two minutes, BH got up, saying that he wanted to borrow some library books and went out of the room again, without permission. As he did, teacher Ron told him that if he left, he would lose further points. BH went nevertheless. 503 On the evidence, it was apparent that by this stage, the trigger for behaviour which put staff safety at risk - not achieving available points - was well and truly present. Despite the violence in which BH had engaged over the preceding weekend as a result of his points, this trigger was not recognised, or dealt with, as it could have been by not permitting BH to return to the classroom. Even though a DJJ officer was standing outside, BH was allowed to return again to class. 504 BH returned, indicating some books on a window display, saying that he wanted to borrow them. He then went to his chair, turned it and sat straddling the chair and started berating teacher Ron again with words like 'What's my fucking points? I'm not losing my fucking points, if you take my fucking points I'll kill you.' Teacher Ron told BH that he was busy with another student and 'When I'm finished, I will speak to you'. BH did not wait and again started abusing teacher Ron. TAS Mary got up and went to BH to try to coax him to ease off and pause. She had only said one or two sentences to him before he started abusing teacher Ron again. When teacher Ron told him that he had lost another five points for leaving the room, BH stood up, picked up his chair, put it behind him and flung it with full force at teacher Ron's head. The chair was heavy, made of hardened plastic and hit a computer monitor behind teacher Ron, when it missed him. BH then went around the room pushing books and magazines off shelves and tried to push over a row of shelves, by domino effect. 505 Teacher Ron's account was to similar effect, but that from his perspective, BH did not seem very threatening, in the lead up to the shouting, abuse and throwing of the chair. Teacher Ron was surprised when it was thrown. 506 The youth officer outside did not come in alone to deal with BH, he waited for assistance. A/P Rebecca called for assistance over the radio. At this point TAS Mary described BH roaring like an animal, with his face distorted, roaming around the room, throwing books and trying to push shelves over. The others in the room stood well back. BH then completely lost it, struggling with the DJJ officers who were trying to control him, when they came to remove him from class. They restrained him with difficulty. He was punching and kicking. 507 While this was taking place, TAS Mary went to deal with one of the other detainees, who was standing with hands clenched, watching BH. This was another detainee known for causing problems and not obeying staff instructions. TAS Mary stood beside him, saying '[R] you are not going to get involved' and he replied 'Why not [B] is my mate'. TAS Mary was worried, because he was well built, over six feet in height and physically strong. She felt that if he had assisted BH to get away from the DJJ officers, who were struggling with BH, she and teacher Ron would have been in trouble. TAS Mary kept talking to the second detainee, to convince him not to become involved, putting her hand on his arm and asking him not to watch what was happening with BH. The Principal entered the room before BH was finally removed by the three youth officers. 508 Initially, TAS Mary did not observe what was happening in the quad, still being engaged with the other detainee. When he moved to the window, TAS Mary followed. It was close to lunch and TAS Mary was concerned as to what would happen, if other detainees were released into the quad for lunch, given the trouble the DJJ staff were having with BH. What occurred in the quad was a prolonged violent struggle, between a number of DJJ staff and BH. They subdued him with difficulty. He assaulted a DJJ officer in the process. TAS Mary, TAS Su and other staff observed what occurred. 509 TAS Mary explained that she could not have just left the room then, she was dealing with the other detainee and that the only time a TAS left a room was if there was an incident and the TAS was relieved to go and write the necessary report. She explained that: '... you just don't abandon the ship. If the staff walked out I'm not saying we are there to physically help but you don't walk out and just let all the detainees go for it. You're there to deter and to assist in any way you can to stop it escalating. There is no way you would walk out.' 510 Afterwards, TAS Mary returned to the staff room, someone made her tea and A/P Rebecca and another A/P spoke to her, as did a DJJ officer, who she noticed had a lot of blood on his trousers, which he told he had got in the fight with BH, who had assaulted other DJJ officers. When she tried to go back to the class to clean up, she was told that it had been done and that she was not to go back. She had to fill in an injury form. TAS Mary found the documents too hard to complete and A/P Rebecca helped her. Another colleague later drove behind her, as she drove home. When she stopped to buy some milk, she 'really' started to react and he had to carry her shopping. Still she was able to drive home slowly. She subsequently sought medical attention. 511 On this evidence there can be no question that BH's threatening and violent behaviour put the safety of a number of staff, including TAS Mary and TAS Su, at risk. What information did the staff have about BH before 15 March? 512 There were issues between the parties as to what information had been provided to the staff about BH. The difficulties which I explained in relation to how information was conveyed at Putland, in relation to the 10 March incident, also prevailed in relation to BH on 15 March. 513 Again, despite what the defendant's paper policies required, the information provided to staff operated at Putland, as I have outlined in relation to TD. There were various sources of information available to staff about detainees. Principally, they all heard about detainee behaviour at morning briefings and information was also communicated through the alert system, as well as through conversations between staff. Past misbehaviour reports were kept and there were summaries of unit logs and files maintained in relation to detainees, which staff could access. A/P Amanda's evidence was that teachers had to make themselves familiar with students, before they had them in their class, including any behaviour management plans for particular students. There were none for BH. Staff were encouraged not to concern themselves with the reasons for detainees' incarceration or their charge history. BH's propensity for difficult, violent behaviour was well known to staff, but they were not provided with the type of documents which the defendant's policies envisaged. 514 In accordance with the defendant's system, BH's three hour confinement for violence over his points, over the previous weekend, would have been discussed at the morning briefing, when the practice was for such information to be given orally to staff. TAS Mary and teacher Ron would thus have had that information. So, too, would the general advice given that day, in relation to all students attending school that day, that they required 'vvcs'. No increased or heightened controls were implemented in response to this advice, other than to have an additional TAS in teacher Ron's class. Having an additional TAS was not a decision made for safety reasons. On the evidence, under the defendant's system, DET staff were not responsible for ensuring safety. It reflected the fact that not all classes were operating, so extra TAS staff were available to assist in a class with which they were familiar. No additional controls were put in place for BH. Despite his record, and despite an earlier recommendation that he have a behaviour management plan, none was in place. Staff were simply told to emphasise the School Rules in class. 515 On 15 March, there was an alert for violence in custody in relation to BH, reflective of his behaviour over the weekend. Such alerts were provided to staff for information, but they did not routinely result in detainees being dealt with any differently to other detainees. It was the Principal's evidence that BH was in teacher Ron's class that day, because only General Education and Distance Education programmes were then operating, because in the aftermath of the escape, there were not sufficient classrooms available, to physically conduct all classes. It was the defendant's case that given that there had been no school on 11 March and half a day on 12 March, it followed that there would have been sufficient time for teacher Ron to have familiarised himself with BH and to access any necessary information about him. That submission has to be considered in light of the practical system which the defendant operated and its failure to individually assess the risks posed by detainees. I have already described those deficiencies, in relation to the first charge. They applied equally in the case of BH. 516 For her part, TAS Mary knew that BH had given other teachers trouble in their classes before 15 March. She had heard bad things about his behaviour and that he resented authority. She knew from what she had heard at morning briefings that he had trashed his room and had done damage, but there were no behaviour management plans in place to deal with him. 517 Teacher Ron's evidence was that he had some 15 minutes to familiarise himself with BH before he took him in class on 15 March. His approach was to ask about a detainee from teachers who had taught him before, rather than checking records. He had learned from his enquiries that the Impact class BH was enrolled in, was a difficult class. 518 There was a question on the evidence as to whether teacher Ron had objected to being given BH's class to teach at the morning DAP meeting, but it was decided that he would go ahead, or whether he had raised this with A/P Rebecca afterwards. Teacher Ron could only remember speaking to A/P Rebecca about being assigned BH's class, outside the morning briefing. Teacher Ron agreed that he could have refused to take the class, but he did not do so, after his discussion with A/P Rebecca. A/P Rebecca could not remember the conversation. Nor could A/P Amanda or TAS Pam remember BH being raised at the morning briefing. TAS Su believed that it had been discussed at the DAP meeting when the Principal reminded staff to raise the School Rules with detainees in class, to make sure they were understood. It is unnecessary to resolve this. However it happened, a decision was made on 15 March to proceed to have the Impact class undertake a General Education class, allowing BH to attend class that day without any additional safety mechanisms in place, to deal with any heightened risk, which he posed that day. 519 That decision was made in circumstances were there were obvious deficiencies in the defendant's practical systems in relation to providing relevant information about detainees; as well as the failure to implement various written policies, discussed in the context of TD on 10 March; or to have a behaviour management plan in place, as at 15 March, in relation to BH, even though that had earlier been recommended, given BH's history of violence in custody. 520 It was Professor Tennant's evidence in cross examination, that a past history of significant violence is an important predictor of violence in custody. Violence in custody would also confirm the potential danger of such detainees committing actual or threatened violence to staff, while at Putland. Professor Tennant also said that the nature of the violence or threatened violence in which a detainee had engaged, had to be taken into account, in making any assessment of risk. Given the way in which risk assessments were generally made at Putland, namely that all detainees were high risk and that at DAP meetings, namely on the basis of oral information made provided to staff, there were obvious deficiencies, so far as BH was concerned. The result was that the system did not identify the risk which BH posed on 15 March and so he was given access to class. The result was an extended, violent episode, involving both teacher Ron and TAS staff, including TAS Mary, an A/P and DJJ staff. 521 On the evidence the defendant had information available that BH posed a risk on 15 March, of engaging in violent behaviour. Such information was conveyed to staff at the morning DAP meeting, putting them on notice that a risk to their safety could occur that day. While all detainees were assessed as requiring 'vvcs', including BH, who had been confined over the weekend for behaviour triggered by application of the School Rules, no extra controls were put in place that day. That risk finally manifested in class, after he was removed from and returned to class. There were warning signs beforehand that BH was likely to engage in violent and threatening behaviour. Still, no steps were taken to exclude him. Whether the School Rule system was a cause of violent or aggressive behaviour 522 The defendant's approach was that the School Rules were designed to encourage good behaviour, but on the evidence there is no doubt that for some detainees, including BH, they were a known trigger for misbehaviour. 523 BH was confined for three hours on the weekend before 15 March, for being violent or aggressive over points earned on the unit. The defendant's approach to such behaviour constituting a warning sign, that a detainee posed a heightened risk of misbehaviour at Putland, was dealt with in Mr Muir's evidence. In his view, that situation was not an obvious sign that BH might misbehave in class on 15 March. This was consistent with A/P Amanda's evidence, that confinement for abusing a youth officer on a unit did not usually lead to exclusion from school. 524 That assessment of BH was plainly wrong. The trigger for BH's misbehaviour on 15 March, was undoubtedly the fact that he would not earn maximum points, after having left teacher Ron's class without permission. On his return, when he was told that he would not earn five of the available points, he became abusive and A/P Rebecca was called on the radio. BH was taken out of class, where he remained for 5 to 10 minutes. After he was returned, he left again, to look at books from the window outside. Even though there was then a DJJ officer stationed nearby, where A/P Rebecca had asked him to remain, when she returned BH to class, BH was permitted to re-enter the class again. A/P Rebecca was then still in the classroom. Plainly, when she returned BH to class, A/P Rebecca had a concern about BH, which was well founded. When BH returned to class, he again began swearing at teacher Ron. TAS Mary believed he also said that 'I will kill you', although teacher Ron was not sure as to what had been said. The situation escalated when teacher Ron told BH he had lost further points. It was then that his violent behaviour erupted. Given BH's known pattern of behaviour, most recently engaged in over the preceding weekend, that loss of points was likely to trigger such behaviour, was well known to the defendant and yet, no steps were taken to preclude him from returning to class, even though the behaviour for which he was removed would lead to a loss of points under the School Rules and he had already been abusing teacher Ron, conduct itself not permitted under the School Rules supposed to be operating at Putland. Did TAS Mary have any basis for concern for her safety on 15 March? 525 There was only one other student left in class with teacher Ron, TAS Mary, TAS Pam and A/P Rebecca, when BH was returned to class. When teacher Ron told BH that he would lose another five points for leaving class for the second time, BH threw a hardened plastic chair with considerable force at teacher Ron's head. Fortunately it missed and hit a computer instead. That was not as the result of any action taken by the defendant. At that point, everyone pressed their alarms and A/P Rebecca called over the radio for help. The first DJJ officer waiting outside the class did not enter alone to deal with BH, he waited for assistance before entering the room, which BH was trashing, commenting that he should 'make it worth his while'. There is no question on the evidence that it was well known to the defendant that exposing its staff to such behaviour put them at risk of injury. There can be no doubt that they were exposed to that risk on 15 March. 526 It was the defendant's case that before the difficulties erupted in class that day, that TAS Mary can have had no real concerns for her safety, because she had earlier called out to BH from the classroom, that he should return from where he was talking to a DJJ officer in the quad, after having gone to the toilet. Be that as it may, TAS Mary certainly had concerns after his return. A/P Rebecca was called to remove him and on her evidence, which I accept, TAS Mary had hoped he would be kept out. Given what was known of his behaviour over the weekend, there was a proper basis for that hope. Soon enough, his violent behaviour erupted, once he learned that walking out of class without permission meant that he could not earn maximum points. This occurred despite TAS Mary's intervention. As she described it, she feared at one point that BH was getting the better of the DJJ officers struggling with him in class and that she and teacher Ron would get assaulted, if he got away. 527 She described BH as out of control and beyond reason. For her part, TAS Pam did not share that concern. She felt that BH's behaviour was deliberate and controlled, when he threw the chair at teacher Ron and then trashed the room. He only got out of control, in her view, as he was being taken outside the room, when he struggled violently with DJJ officers. If that assessment of BH's behaviour in the classroom be correct, it must be observed that given the expert evidence, the risk which BH posed to staff was even greater than it might otherwise be thought to have been. Deliberately throwing the chair, with considerable force at teacher Ron's head and then trashing the room as premeditated actions, would have been even more serious than the chair and books being thrown as a part of an uncontrolled tantrum, or rage. 528 TAS Pam had never been physically attacked by a detainee at Putland, and her evidence was that for the majority of the time at Putland, she felt safe, given the personal alarms and the procedures in place. In her experience, DJJ assistance always came quickly. Her unease, on about 2% of the time, arose, she said, from the risk of violence from detainees, although she did not feel physically threatened by BH, who was being controlled by DJJ staff. 529 On his evidence, teacher Ron was trying to pacify BH, when he threw the chair which narrowly missed his head, after banging the desk, shouting and swearing, demanding his points. While the defendant submitted that it would have been difficult for BH to have missed teacher Ron, from such a short range, if that had truly been his intent, the submission, it appears to me, rather missed the point. The charge was concerned with the risk to which TAS Mary and TAS Su were exposed. That teacher Ron was not struck by the chair BH threw, was fortunate, but not the outcome of any control which the defendant had put in place, in order to deal with BH's behaviour. On his evidence, teacher Ron did not even have the time to feel threatened when the chair was thrown, it happened so fast. That reaction set in later. TAS Mary who was observing what was unfolding and dealing with the other detainee in the room, had more opportunity to be concerned by what was unfolding, having sought unsuccessfully to calm BH down and then being engaged in trying to ensure that the second detainee didn't go to BH's assistance. 530 BH then pulled things off walls, threw books to the floor and attempted to knock over bookshelves in the room, which was fitted out as a library. BH refused to leave with the DJJ officers, who responded to the duress alarms, three of them eventually getting him out, with BH kicking and punching at one point, until he was removed in a relatively calmer state, having first put up quite a struggle in the room. On the evidence, by the time he was removed, he was no longer a physical threat to staff in the room, but that what he had done, placed TAS Mary at risk of psychological injury, cannot be doubted. 531 On the evidence of the DJJ officers involved, the struggle erupted into a serious fight, once BH was in the quad. At least one officer was assaulted, for which BH was later charged. 532 Who was then involved was a little unclear. Certainly Ray P and David L, who met in the quad and went to the room to join the first DJJ officer who was already in the class. Ray P's description of BH's behaviour departed from how others involved described it. His evidence was that there was no difficulty in convincing BH to come out of the room and that not much happened in the quad, although BH grabbed his shirt. I am unable to accept that as an entirely accurate reflection of the events in question, given the significant differences between what Ray P described he observed and the evidence of other witnesses, which included BH taking his shirt off in the quad and saying 'have a go'. I was left with the distinct impression that in his evidence, Ray P attempted to play down what had occurred, perhaps in order to explain his failure to later provide an Incident Report, as required by the applicable DJJ policies. 533 David L, by way of contrast, described BH as being in a rage when he first entered the room, with books everywhere, having been knocked off the shelves and BH becoming aggravated again, after initially calming. BH yelled, swore and knocked more books off the shelves, before he was escorted out of the room with both Ray P and David L having their hands on him. In the quad, Ray P tried to calm BH, but three other staff had to come to assist. Nothing got through to BH in their negotiations. As well as taking his shirt off and saying 'have a go', BH threw a punch at David L and then was taken down to the ground and handcuffed. He was still in such a rage that he had to be lifted and carried out of the quad. David L agreed that by this stage, it was like a rugby maul and that BH was swearing and yelling and making animal sounds, he was so out of control. Despite this, David L also recalls no incident report being completed, as the DJJ policies required. The evidence of TAS Su, teacher Ron and other witnesses accorded with this account. 534 Like Ray P, the Principal's description of what occurred departed significantly from that of other witnesses, who corroborated the accounts given by TAS Mary and TAS Su. The Principal entered the room as the two DJJ officers were entering; she described BH as appearing distressed; he was escorted out without force, under control, not resisting. She had a good view of what occurred outside, where there was a relatively quick and easy interaction, which seemed calm, although the Principal accepted that she could have been mistaken. She also accepted that she had heard animal noises and other youth officers responding. I am also unable to accept that evidence as an accurate account of what occurred, given the evidence of other witnesses. 535 I am satisfied that the evidence showed, to the requisite degree, that TAS Mary was exposed to a known risk of injury on 15 March from BH's behaviour that day. BH's behaviour, in class and in the quad, provided a very real basis for TAS Mary's fears for her safety. Undoubtedly, that behaviour drew to her attention in a very direct way, the basis upon which she had been trained to treat detainees, as always posing a very serious risk to her safety. 536 It may also not be overlooked that the events of 15 March followed what had occurred on 10 March, by which TAS Mary had undoubtedly already been affected, as she had by the Principal rebuffing her attempts to raise her safety concerns about what happened that day. While on 15 March, the defendant's safety system operated effectively to ensure restraint, that did not prevent the risk of psychological injury which such behaviour gave rise to, from manifesting for TAS Mary. 537 As to TAS Su, clearly her physical safety was not put at risk by what she observed in the quad that day. Nevertheless, she was undoubtedly affected by what she observed, on her own evidence and on the account which she later gave to Ms Koussa and those who later treated her. No doubt BH's rage brought home to her very directly, the kind of behaviour to which her work in class could expose her. She had been involved in violent incidents in class, in the past. This incident occurred at a time when she was aware of the Principal's refusal to respond to TAS Mary repeatedly raising her concerns about the events of 10 March and the failure of the safety systems that day. That TAS Su was affected by what she observed on 15 March, cannot be doubted. It was Ms Koussa's opinion that it contributed to the injury which she finally suffered. That opinion must be accepted, according as it did with the medical evidence and even evidence given by the defendant's experts in cross examination, as I have explained. Should teacher Ron and TAS Mary have left the room when directed to do so by the Principal? 538 The defendant argued that it was relevant that teacher Ron and TAS Mary had failed to adhere to the Principal's direction, to leave the library and to stop observing what was happening in the quad. The Principal entered the room by a door from the admin area normally kept locked, to which she had a key, while BH was still in the library. She had heard calls for assistance over the radio. When the Principal entered, in the room were teacher Ron, TAS Mary, TAS Su, A/P Rebecca, the Principal, three DJJ officers and two detainees, including BH. At one point, as DJJ officers were struggling to control BH outside, she directed staff, including teacher Ron and TAS Mary, not to watch and to leave the library through the door by which she had entered. 539 Teacher Ron denied having failed to do as he was told. Perhaps he did not hear the Principal. Like other witnesses, his description of the events were that they were dramatic and absorbing and continued outside the classroom, with more DJJ officers responding and BH finally being pulled to the ground and being handcuffed, before being removed. TAS Mary also denied failing to do what the Principal directed. She was still dealing with the remaining detainee and thought the Principal's comment was directed to him. 540 Teacher Ron agreed that he had not been trained to physically intervene in a confrontation such as that involving BH, but said that in an emergency, or crisis, staff might be required to do so. That was consistent with the applicable Legal Services Bulletin which the Principal had provided to staff. Teacher Ron explained he was surprised, when the chair was thrown at him and that if BH had attacked TAS Mary, he would have tried to stop him, but he did not believe at the time that BH intended to hit him, or the TAS in the room that day. It was only afterwards that teacher Ron came to realise the seriousness of what had occurred. 541 Other staff outside the class also observed what happened in the quad. A/P Jon, for instance, described DJJ staff spending up to 10 minutes trying to talk BH down, without success. He was 'quite distraught, yelling and screaming'. Other observers including TAS Su and even the Principal described BH making animal noises, at one point. TAS Mary and TAS Su found what they observed distressing, as it undoubtedly was. 542 The Principal explained that she tried to have staff in the classroom stop watching, because it was unpleasant and they did not need to see what was going on. Like teacher Ron, TAS Mary did not respond to her direction. TAS Mary did not remember the Principal arriving in the room, but saw her in the doorway when she was speaking to the other detainee, when she said to him to get back from the window. On Ms Koussa's evidence, even if TAS Mary had understood the Principal's direction, to stop watching BH, if she was scared it would have been quite understandable that TAS Mary froze, no longer really able to make decisions. It was likely that a person in that position would tend to be glued to what was going on, rather than being able to detach. There was by then a big group of DJJ officers struggling in the quad with BH, where a considerable altercation developed, in which at least one DJJ officer was assaulted. Other staff including TAS Su observed what there occurred, before BH was handcuffed and carried from the quad. On the evidence there is no question that this was a very serious incident in Putland terms. BH was transferred to Kariong as a result. 543 After BH had been removed, the Principal had to tell TAS Mary not to clean up the room, or to put equipment away, but to come away with her. She left TAS Mary with A/P Rebecca, her supervisor, to give her support. It may have been better if TAS Mary had heard and reacted to the Principal's direction, which was, no doubt, well intended. On her evidence, she understood that the Principal was directing her comments to the detainee. That TAS Mary did not appreciate the Principal's direction, seems to be consistent with the description of the other Putland staff who observed this event. They all appeared to find it transfixing, a normal reaction to what was going on, on the expert evidence. 544 On the evidence, I am unable to find that either teacher Ron or TAS Mary understood that the Principal was directing them to leave the library, but disobeyed her. Even if the direction had been given and understood, that this would have been an adequate way in which to ensure TAS Mary's safety was not established. Causal connection 545 I am also satisfied that a causal connection between the defendant's acts and omissions and the manifestation of the risk which BH posed on 15 March, was shown on the evidence. 546 The defendant operates a workplace at Putland which requires its staff to work with detainees known to engage in violent and threatening behaviour of various kinds towards staff and other detainees. They see such behaviour and are also subjected to it, as the Principal, various A/Ps and other witnesses, such as Jayne M explained in their evidence, which I outlined earlier. 547 As I have explained, the systems which the defendant had in place could not ensure that all detainees who might engage in such behaviour were identified and prevented from attending classes, despite the daily DAP system. Such behaviour was unpredictable and presented an ever present risk, which staff had to guard against. Therefore, teachers and TAS were provided with a duress alarm and a radio was also provided to each teacher, to take to class, so that assistance could be called for, if it became necessary. DJJ staff were located in close proximity, in order that they could go to a classroom, if problems arose and assistance was required. On 15 March, it was. 548 Because of the escape on 10 March, there was a reduced number of classrooms available for classes to be delivered. It was decided to permit students to attend only two classes per day, instead of the usual four, to ensure that all detainees had the opportunity to attend school. While there were risk assessments conducted in relation to the low risk programmes offered at Putland, Jayne M, who was involved in the risk assessment process, was not aware of any risk assessment conducted in relation to this change. 549 After the escape on 10 March, there had been no school until 12 March. There was evidence that detainees were very unsettled. The Putland staff were advised at the morning briefing on 15 March, that detainees generally required very, very close supervision. On A/P Amanda's evidence, this meant 'extra supervision provided by a youth officer at that point in time' and, for example, 'having the youth officer in the class'. No such additional controls were implemented generally, or in relation to BH. The usual controls, applying the School Rules and having an A/P and DJJ staff nearby in the quad, were in place. The only additional staffing was the presence of two TAS, rather than one in the General Education class, made possible because there were insufficient classrooms for all classes to be conducted. TAS staff, were not, however, present to ensure safety. That was the role and responsibility of the DJJ staff. 550 Teacher Ron had concerns about BH being given access to school that day. He was not excluded. Professor Tennant agreed that individual detainees needed to be assessed because they had different propensities for violence. Despite that being required under the defendant's written policies, it did not occur at Putland, as I have earlier explained. The January 2004 Legal Issues Bulletin envisaged that violent students would have the risk of violence dealt with by a behaviour management plan, as the 'primary measure'. Despite such a plan having been recommended for BH in November 2003, there was no such plan in place. 551 The result was that BH, enrolled in the Impact programme, was assigned to a General Education class. BH was in custody, having been charged with a number of serious offences involving violence. Jayne M agreed that he was a violent adolescent who had learned that by being violent, people backed down and give into their wants. His violence continued when he was in detention. In November 2003, he had smashed a TV in his room, when he could not get his own way; he had later threatened to smash a printer in class; he had threatened staff and grabbed a piece of paper from a teacher; and he had been confined over an incident involving points, the previous weekend. On 15 March, he became abusive over loss of points, despite TAS Mary's attempt to calm him, he then threw a chair at teacher Ron, narrowly missing his head. 552 On 15 March, teacher Ron took the class for the first time. TAS Mary and TAS Pam were present, a second TAS being available because of the reduced number of classes operating and TAS Pam being familiar with those detainees. 553 TAS Mary was in class and involved in endeavouring to get someone to take BH from class, to go to the bathroom, when he simply left, unaccompanied, contrary to the School Rules. Under the Rules, this meant he could not earn maximum points, a known trigger for misbehaviour, indeed a trigger which had led to BH's confinement over the preceding weekend. Despite this, he was allowed to return to class and was later removed by A/P Rebecca, when he became aggressive, being told that he would lose points as a result of his misbehaviour. Instead of BH then being excluded, as he could have been, he was returned again to class, where it soon became apparent that his dissatisfaction with the fact that he would not be earning maximum points that day, was the trigger for the violent and aggressive behaviour which he then engaged in. 554 A DJJ officer had been asked to be nearby this class, when A/P Rebecca returned BH. Clearly her conversation with BH had not been such as to enable the behaviour, which he then unleashed upon teacher Ron and the others present in class, to have been predicted, although A/P Rebecca was not confident, obviously, that he would behave, once returned and so she asked the DJJ officer to be nearby. This approach accorded with the evidence as to the policy at Putland to give detainees access to school and to remove them from class only as a last resort. In BH's case, that approach on 15 March resulted in the defendant failing to ensure safety. 555 Had BH's behaviour been predicted, he would, undoubtedly, not have been returned to class by A/P Rebecca. The DJJ officer who had been asked to remain nearby, was to be available to provide assistance if necessary. That this as an inadequate control in the circumstances soon became apparent. The DJJ officer felt himself unable to deal with BH alone, given BH's behaviour and so he called for further support. Plainly, that DJJ officer's assessment was accurate. 556 The evidence of the various witnesses differed somewhat as to how extreme BH's behaviour then became in class, as I have explained. It deteriorated further outside. On the evidence of various witnesses, and given his transfer to Kariong and the charge of assault laid by the DJJ, it was at the higher end of what staff were exposed to at Putland. The level 2 behaviour management report prepared by DET staff, by way of contrast, merely recommended confinement for BH and a return to School after completion of the Focus programme. No charges were laid in relation to teacher Ron's assault. 557 TAS Su was not in the class, but observed BH's behaviour in the quad, as did a number of other staff. TAS Mary was badly affected by the experience and sought medical assistance. TAS Su was also undoubtedly affected, but continued to work, until she was involved directly in an incident on 17 March. She then sought medical assistance. Teacher Ron also continued for a few days, until he too, sought medical assistance. 558 On this evidence, there can be no question that BH was in class on 15 March, as the result of the operation of the defendant's practical systems. He was permitted to return twice to class, despite failing to abide by the Rules. This resulted in him not earning maximum points, a known trigger for behaviour which put staff safety at risk. TAS Mary was directly exposed to that behaviour as a result. She was obliged to remain in class to help deal with the other detainee, while BH was dealt with by the DJJ officers, to ensure that the other detainee did not go to BH's assistance. While the defendant did not cause BH's behaviour, TAS Mary's exposure to the risk of injury which flowed from that behaviour, was unquestionably the result of the defendant's acts and omissions that day. 559 TAS Su was not directly at risk of physical injury from BH's behaviour. She observed it, however. Given what the various witnesses described as having unfolded in the quad, that TAS Su was adversely affected, cannot be doubted. She already had known concerns about her safety. This incident occurred on Monday, at a point where the Principal had repeatedly refused, up to the preceding Friday, to investigate or deal with the failure of Putland's safety system on 10 March, the preceding Wednesday. No doubt observing BH's behaviour brought home to TAS Su the magnitude of the risks which her work exposed her to, risks which had earlier manifested in classes she had been working in. 560 It was known to the defendant that repeated exposure to such incidents put its staff at risk of injury. Despite this, paper safety systems designed to protect its staff from such injury, were not in operation as I have explained. It follows that there can simply be no question that the defendant's acts and omissions were causally connected to the risk to which TAS Mary and TAS Su were exposed on 15 March. Particulars 561 I turn then to the particulars. a) There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer. 562 There can be no doubt that this particular was made out. As at 15 March 2004, the risk in question, being injured as the result of being subjected to or witnessing violent and anti-social behaviour in class, was known. Not only was it a general risk which the defendant had sought to address in its policies and practices, on Mr Armstrong's evidence, it was a risk which was then known to have already manifested in injury suffered by other staff at Putland. At Putland, staff were frequently exposed to violent and anti-social behaviour, directed by detainees to other detainees, to DJJ staff, and to DET staff. This occurred, despite steps taken before detainees were permitted to attend Putland, despite the morning DAP system and despite the operation of School Rules, designed to encourage detainees not to engage in such behaviour. That was why DET staff were provided with personal duress alarms; teachers also had a radio and DJJ staff were located in close proximity, in order to be able to speedily render assistance to DET staff, if it was required. These were measures available to the defendant to control the risk when it manifested, the defendant not being able to exclude it. BH's propensity for such behaviour was well known and yet a required means of controlling such behaviour, a behaviour management plan, was not in place for BH. 563 It was well known to the defendant that its daily DAP system, at which detainee attendance at school each day was assessed, could not ensure that BH, a detainee who was known to be likely to engage in violent behaviour if he did not earn maximum points, was detected and precluded from going to class, on a day when he was likely to engage in such behaviour. On 15 March, BH was not excluded, despite the DJJ advising Putland staff that all detainees required 'vvcs' that day and despite his behaviour over the preceding weekend. BH was given access to class and no additional controls were implemented, for the heightened risks generally identified that day, or which ought to have been identified, in BH's case, given his misbehaviour over the weekend. 564 Neither the safety equipment available, nor the various policies in place at Putland, prevented the defendant's staff being exposed to such behaviour by BH on 15 March. The School Rules system, which was designed to operate as a reward system to encourage detainees not to engage in such behaviour, was again not effective in ensuring that it did not occur that day. Indeed, like on 10 March with TD, and with BH over the preceding weekend, the points system, a known trigger for such behaviour in BH's case, again triggered BH's behaviour on 15 March. 565 Such threats to the safety of staff was ever present at Putland, given the conduct of detainees incarcerated at Cobham. Staff were warned never to be alone with a detainee and to treat each of them as potentially violent. Staff regularly witnessed violence between detainees and detainees being restrained by DJJ staff, when they had engaged in such violence. On occasions Putland staff, including the Principal, herself, and TAS Mary, had to become involved in restraining detainees. Prior to 15 March, staff themselves had been threatened with violence and some staff had been assaulted. For TAS Mary, she had most recently been directly involved in such an incident on 10 March. TAS Su had also been involved that day when the duress alarm system failed and was aware of TAS Mary's unsuccessful attempts to have that failure investigated or addressed in the intervening period. Each morning staff received reports on detainee behaviour overnight and at weekends. In some cases the behaviour involved violence towards DJJ staff and other detainees, of such a kind that detainees were excluded from school. On 15 March, such a report was given in relation to BH. 566 That safety would generally be a staff concern at this workplace and particularly in relation to BH on 15 March, given this approach and the risks to which working with these detainees potentially posed, was no surprise. Staff constantly had to be vigilant as to their own safety, as well as that of other staff and detainees. On 15 March, this need materialised for TAS Mary, when BH's behaviour escalated entirely out of control in class, after he was returned to class by A/P Rebecca, having abused teacher Ron over his points. Despite leaving class again without permission, he was allowed to return. When informed of the result, loss of further points, his behaviour disintegrated. That day BH plainly put the safety of TAS Mary and of others present in class at risk, by his behaviour. 567 In its 'Management of Serious Incidents' policy, the DET required each workplace to 'develop or revise its own Serious Incidents Management Plan which identifies the nature and range of serous incidents to which students and staff may be exposed'. Examples of serious incidents included 'violence between students, or the assault of a student or staff member' and 'threats to the safety of students or staff, including the presence at the workplace of an individual behaving in a dangerous or threatening manner'. Violence was defined as 'intentionally causing injury or threatening serious harm to another person'. No serious incident report had emerged in relation to TD's behaviour on 10 March. There was such a report in relation to the BH incident. 568 This policy also required in the case of persons affected by an incident of violence, that: Access to appropriately qualified counselling personnel is part of the support needed. These personnel can be either internal or external providers. In the case of students ... . The Employee Assistance Program provides counselling for staff individually or in groups. In addition to the provision of counselling, managers and staff can assist by spending time with the person, listening and reflecting on their comments about their experience Where appropriate, workplace managers can re-iterate the availability of counselling. It should be noted that the incident need not be reported as a serious incident for counselling to be made available. It is important that Departmental policies are implemented and that a thorough review of the Serious Incidents Management Plan takes place following an incident. 569 There was evidence of assistance being given to TAS Mary after the incident by A/Ps and she sought counselling and medical advice. By that time the injury had been sustained and she never returned to school. There was no evidence that such assistance was provided for other staff such as TAS Su, who had been exposed to BH's behaviour in the quad. In the DET 'Keeping Safe A Risk Management Approach to Managing challenging Behaviours' policy, it was noted that: Staff welfare is about developing a human centred workplace culture based on safety, dignity, tolerance and cooperation. Support structures need to be available to staff in times of stress and immediately after crisis incidents, both within and outside the school. Staff should not just be expected to "get over it" and continue work. They may require time away from work so they are not placed at further risk of trauma or other injuries because they cannot concentrate on their tasks. Controls should focus on supporting staff to recover after the event and may include medical attention, injury management, de-briefing support or counselling. 570 Had those steps been taken after 10 March, the injuries which resulted from the 15 March incident might have been prevented. Such steps should plainly have been taken after the 15 March incident. The possibility of staff suffering a psychological injury at work was recognised by the DET in the policies, but the various paper systems which the defendant had developed to be implemented at Putland to deal with such risks, were simply not operating adequately, or in some cases, at all. The system which was in practical operation, also failed to prevent this risk from materialising. 571 This policy also required each workplace to establish a serious incidents committee, to 'assist the workplace manager in the prevention and management of serious incidents at the workplace'. There was no such committee at Putland . It was the Principal's firm attitude that safety was a matter for the DJJ. In the days preceding 15 March, from 10 March onwards, she repeatedly refused to discuss safety concerns raised by TAS Mary at meetings and which she otherwise sought to pursue with her. 572 On the Principal's own evidence, that was the attitude which she took on 10 March and subsequently, when TAS Mary and others sought to discuss with her, the failure of the duress alarm system to bring aid to her and teacher Ron that day and the circumstances in which the escape had occurred that day. The Principal's practice required that such matters be raised by staff with supervising A/Ps, but on the evidence of A/P Rebecca, TAS Mary and TAS Su's supervisor, when she sought then to pursue such matters with the Principal, she still took the view that they were matters for the DJJ, not Putland, to deal with. That was her approach in relation to the problems of 10 March, an approach inconsistent with the Serious Incidents policy, and other policies I have earlier dealt with. Had that policy been operating, the Committee's attention would have been drawn to the trigger for TD's misbehaviour - the operation of the School Rules, that same trigger which resulted in BH's misbehaviour on 15 March, which again put staff safety at risk. That risk could then have been identified and dealt with, on 15 March. 573 Apart from these policies, even under the defendant's practical safety system there were obvious steps available to the defendant, which it could have taken, to prevent these risks from materialising. It is unquestionable that BH could have been prevented from returning to class on 15 March on the two occasions when he left without permission, given that this meant that he would not earn maximum points under the Rules, a known trigger for violent behaviour in his case. 574 While BH was finally able to be restrained, albeit with difficulty in the classroom, in the quad, his outburst continued to the point where it took a large number of DJJ officers to restrain him, after he had assaulted one officer, while he was howling like an animal, events observed by both TAS Mary and TAS Su, with a result that there can be no doubt, that TAS Mary and TAS Su were put at risk of injury, as charged. 575 Particular (b)(i) of the charge provided: b) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent detainee BH from being in the class. 576 There was no question that BH could have been prevented from attending class entirely on 15 March. The defendant's case that BH presented no risk to TAS Mary on 15 March, entirely overlooks the defendant's own safety system. Under that system, BH was a serious offender, assessed as always posing a high risk to staff, all of the time. That was why he, like other detainees, were only given access to low risk programmes. 577 The defendant's efforts were directed to detecting if BH presented a heightened risk at any time, in which event, additional controls would be implemented. While there had not been problems with BH over points at school the previous week, there was a violence in custody alert for BH on 15 March, reflecting the problems with his behaviour on the weekend, over points. On Jayne M 's evidence, BH was known to become abusive, when he did not get his own way. He had been confined over the weekend as the result of an incident at the unit, triggered by the operation of the points system. The system at Putland involved staff being notified as to which detainees were serious offenders and which posed particular risks on any day, through the system of alerts. While there was such an alert that day for BH, that alert also resulted in no additional controls being implemented for BH. 578 While BH could have been entirely excluded from class that day, he was not. It cannot be doubted that BH presented a heightened risk on 15 March, given that all detainees, including BH, had been assessed as requiring 'vvcs'. Still, no additional controls were implemented when he was permitted to attend class. 579 The DJJ could have precluded BH's attendance at class that day. He could also have been excluded by the Principal or by an A/P, as the result of the morning DAP process. None of those practical systems detected that BH would behave in such a way on 15 March, as to put staff safety at risk and they did not result in his exclusion, despite the concerns raised by teacher Ron before the class. 580 Even though not entirely excluded from school that day, BH could also have been excluded by A/P Sue, once he had left the class unsupervised, contrary to the School Rules. Given his behaviour over the weekend, that application of the points system to this behaviour, risked BH engaging in further misbehaviour in class, if he was allowed to return, was apparent, given what was then known of him. He had left the class unsupervised. Detainees were not permitted to leave class unescorted, even to go to the bathroom, as BH well knew. At that point, he was unlikely to earn maximum points for the class. Still, BH was not excluded. 581 Loss of points then led to him abusing teacher Ron and he was removed. Again, he was returned. While A/P Rebecca was still in the class, he left the class again. Even though a DJJ officer was stationed nearby, he was then permitted again to return to the classroom. Under the Rules, this was likely to result in a further loss of points, as teacher Ron had warned him. Still he was allowed to return, for points to be allocated by teacher Ron. BH then became really agitated when informed that under the Rules he would not earn a further five points, for having left class a second time. It was then that BH lost control. 582 The result was that when BH went on a rampage in the class, so as to make his loss of points 'worth his while', teacher Ron and TAS Mary were subjected to his violent and destructive behaviour. He was controlled with difficulty by DJJ staff, after reinforcement had to be called before any restraint was attempted, before being removed from the classroom, where his behaviour again spun out of control. 583 Had he been prevented from returning to class the second time, the behaviour which then involved swearing at and threatening teacher Ron, throwing a chair, trashing the room, struggling and fighting with the DJJ officers then needed to control and remove him, and the further officers required to control him in the quad, would have been avoided. The trigger for that behaviour was being told he would lose another five points. The controls used to ensure that this behaviour would not materialise were plainly inadequate, given the events as they unfolded. On any view, BH ought not to have been permitted to return to that class, if safety was to be ensured on 15 March. 584 This is not to reason with the benefit of hindsight, as the defendant argued. Rather, it is to analyse the evidence as to the risk in question, how it was controlled by the defendant, given the system by which it operated at Putland, and how it came, nevertheless, to materialise. Before 15 March, dissatisfaction with the point system was a known, recent trigger for misbehaviour for BH, a high risk detainee for whom a violence in custody alert was in force that day and who was known to become abusive, when he did not get his own way. Despite all detainees being assessed as requiring 'vvcs', no additional controls were put in place. Further misbehaviour over points materialised on 15 March. That put staff safety at risk including TAS Mary. Rather than this obvious trigger being controlled by his removal from class, the behaviour was permitted to escalate, by exposing BH further to the trigger for his misbehaviour - his dissatisfaction with the points he was earning from his ongoing misbehaviour in class. The escalation of BH's behaviour then also put other staff, including TAS Su, at risk. 585 That ought not to have occurred. Given his behaviour and what was known of BH, it cannot be doubted that he should have been excluded from class, if safety was to be ensured. There can simply be no doubt that this particular was made out on the evidence. 586 Particular (b)(ii) of the charge provided: ii) Failing to have a Juvenile Justice Officer present in the class room to support and monitor students, classes and program delivery staff. 587 There was no issue that there was no DJJ officer present in the class on 15 March, when BH assaulted teacher Ron. It was DJJ officers who had the custodial responsibility for detainees. The DJJ had advised Putland that detainees required 'vvcs' that day. Despite this, no additional security, such as having a DJJ officer in the classrooms was introduced, even though the normal operation of the school was to be disrupted that day, with not all classes being able to be run, because there were insufficient numbers of classrooms, given the building works and the aftermath of the 10 March escape. 588 There is also no question that this was an additional control available to be taken by the defendant, to deal with the heightened risk generally identified to exist that day. That there was also heightened risk in relation to BH, given the operation of the School Rules as a known trigger for his misbehaviour, was also obvious, given what had occurred over the weekend. 589 I accept that commonsense suggests that the presence of a DJJ officer could have been an effective way of preventing the risk which BH posed, from materialising that day. Had a DJJ officer been present, he could have removed BH when he first wanted to go to the bathroom, rather than being allowed to wander out, which led to the first loss of points, which began his downward spiral. Had such an officer been present after BH was returned, that officer would have been present in class to observe and deal with BH, as his behaviour began to unravel. Such an officer could clearly have prevented a second return to class. 590 A/P Rebecca had a DJJ officer stand nearby when she returned BH to class. That was an inadequate response in the circumstances. It was the evidence that a 'vvcs' rating required a control such as a DJJ officer present in class. There was no explanation as to why that did not occur. The atmosphere amongst detainees was described as 'electric', in the aftermath of the escape. Only one detainee had been returned. It thus became known to detainees that the perimeter fence was no longer there. Classes were disrupted and the operation of Putland, was entirely out of the ordinary. 591 It was DJJ staff who had the responsibility to deal with, and if necessary remove from class, detainees who were violent or threatening toward school staff or other detainees. While DJJ officers were not usually located within classrooms, on occasions they were so placed, although on A/P Amanda's evidence, this was usually in cases where a detainee was at risk from other detainees, not where a detainee posed a risk to staff. 592 The defendant argued that it was relevant that when BH threw a chair at teacher Ron, there were four adults already present. Given that all were DET staff, under the defendant's systems, none had responsibility for ensuring safety. While throwing a chair was not expected, the defendant had to deal with detainee behaviour which was known to be unpredictable. In the case of BH, it was known that he would be aggressive towards staff and was prone to damaging equipment and that points were a trigger. 593 The risk which detainees posed in class were dealt with by DJJ officers who were ordinarily located outside the classrooms in a quadrangle, about 50 metres away from teacher Ron and TAS Mary's classroom, so that they could attend any classroom, to deal with problems which arose. On the evidence, this arrangement usually permitted a swift response from a DJJ officer, when staff called for assistance. Once BH was returned to class, a DJJ officer was stationed nearby, but not within the class. 594 On the evidence, that officer was not able to respond himself, once BH decided that if he was not going to get full points for the class, he should 'make it worth his while', because by that stage, in that DJJ officer's assessment, he alone was insufficient to be able to restrain BH and further assistance was required. On the evidence that assessment was plainly correct. 595 There was then an extraordinary episode, where BH was removed from class with difficulty and once outside in the quad, he became even further enraged, tearing his shirt off at one point, fighting with the three or four DJJ officers then required to control him, howling like an animal and having to be handcuffed and finally being carried away from what was described as a rugby maul by one witness. This was described by Jayne M as at the upper end of seriousness for Putland. That was not how the Principal or A/P Sue who wrote the misbehaviour report viewed it at the time. As I have observed, the approach of the two departments was quite different. I am entirely unable to accept the DET's view of this incident. 596 In the light of all of the evidence, the defendant's submission that there was not a sufficient basis for concern about BH, to lead him either to be excluded from school that day, or to implement additional control measures over and above what was already in place, cannot be accepted. There can be no doubt, that this particular was established. iii) Failing to undertake an adequate risk assessment of the class composition and in particular the presence in the class of detainee BH, which required consultation with the teacher and the TAS allocated to the class, provision of the history of BH, assessing the actual risk according to how severely could it hurt someone or how ill could it make someone, assessing the likelihood that the risk will cause an injury and then eliminating the risk or putting in measures or steps to minimise or reduce the risk. 597 Again, this particular was concerned with the failure to have a formalised individual risk assessment for detainees, such as BH, using a tool such as Hazpak, and instead, assessing all the detainees as presenting the same, generalised high risk for staff safety. Undoubtedly, as at 15 March 2004, there was no individual assessment in relation to BH, despite what the defendant's policies required. There was not even an individual behaviour plan, which had been recommended and was required under the applicable policy. 598 There was extensive evidence as to the defendant's approach to the assessment of risks at Putland, which changed over time, becoming more formalised. Detainees were also the subject of ongoing assessment as to the risk which they posed by the DJJ, through various systems which it operated and which I have described. 599 The evidence was that over time, the DET changed its approach to risk assessment, with the introduction of a formalised system of risk assessment for the various programmes conducted at Putland. All programmes offered were assessed to be low risk. By March 2004, a formal assessment of programmes was still underway, but formal assessment of detainees' participation in those programmes was not. This changed later in 2004. In March 2004, all detainees were assessed as presenting a high risk, thus only being entitled to access low risk programmes. I have already described the deficiencies with this approach, in relation to the earlier charge. 600 The General Education class undertaken by BH on 15 March was assessed as involving a low risk. BH had not been taking such a class, he was enrolled in an Impact class, another low risk programme. There was no evidence of any formal risk assessment of the change introduced after the escape, which involved BH being sent to take this General Education class, rather than the Impact class. On 15 March, other detainees were removed from the class during the course of the morning, not being willing to participate and later, BH engaged in violent behaviour, which had not been predicted by any assessment undertaken by the defendant before the class was undertaken, despite the DJJ assessment that all detainees required 'vvcs' and the violence alert that day for BH. 601 BH had successfully undertaken Putland's entry programmes. The risk assessment processes operated by the defendant as to the composition of the General Education class at any time, or BH's participation in it, on 15 March, occurred through the daily assessment made through the processes which culminated in the Putland morning briefing and the production of the DAP sheet, as to detainee attendance at school that day. It was during this process, which took about 30 or so minutes, that all detainees' access to programmes that day was assessed. This involved up to 60 detainees. 602 As I noted earlier, there was an issue between the parties as to how those processes operated in practice, what information was, in fact, provided at the DAP meeting to staff about the detainees to be in their class each day; and the real ability of staff to raise and have addressed, any concerns about a particular student participating in their class. That the defendant's practical system was inadequate on 15 March, was established. Teacher Ron's concerns that day did not lead to BH's exclusion or any other controls for the heightened risk he presented; not even the DJJ advice that all detainees required 'vvcs', led to any increased safety measures, given the heightened risk actually identified for all detainees. 603 Certain information was provided to staff through the system of 'alerts', which were the product of a DJJ computer system and ongoing assessments about detainees and their behaviours, made by DJJ staff. The alerts were communicated to DET staff through a whiteboard located in the general office. Alerts were notified in a document known as the bed sheet, delivered each morning to Putland. The alerts were then placed on the whiteboard, or alterations affecting detainees, who were already on the whiteboard, were made. Staff were required to keep aware of alerts. Teachers were obliged to note the alerts each day in their Day Books. 604 The alerts dealt with matters ranging from medical, such as asthma or epilepsy, to concerns such as a detainee being at risk of self harm, or an escape risk, to detainees who had a history of violence in custody. There was also a system of noting detainees who were serious offenders. 605 The evidence was that the alerts were not always updated until after staff had gone to class. The morning briefing had to be attended by all staff. It could take up to 30 minutes and continued until everything necessary had to be dealt with. The result was that staff could then only have a short period of time between the end of the meeting and the beginning of class. If the alerts were not updated before they went to class, the result was that staff were not provided with relevant information until later in the day. 606 The evidence was that a copy of the bed sheet was kept in the office, near the whiteboard and that staff were able to have access to the bed sheets, which included information as to which detainees were serious offenders and what they were charged with. Staff were encouraged to view this information as not being relevant to them. This was consistent with the Principal's evidence. 607 There was a violence alert for BH on 15 March. Teacher Ron raised having BH in his class that day, at least with A/P Rebecca. His concern was not accepted and he was required to take BH. No part of the defendant's safety systems had predicted BH's behaviour that day. Nor had the heightened risk which flowed from his attitude to the operation of the School Rules been identified, despite what had occurred over the preceding weekend or the resulting alert. This was so, even though on Jayne M's evidence, it was already known that the School Rules were not an effective way to control BH's behaviour. To the contrary, they were a known trigger for behaviour which put staff safety at risk. That the alert system was an ineffective control mechanism in his case was soon confirmed in the classroom. Had a behaviour management plan been in place for BH, as the defendant's policies required, this risk and how it could safely be dealt with, could have been identified and addressed. 608 I am satisfied to the necessary degree that the risk assessment of BH was entirely inadequate on 15 March and that this aspect of the particular was established. The allegation as to the inadequacy of the risk assessment in relation to composition was not established, however. The evidence did not establish that the composition of the class in which BH participated that day, was causally connected with the manifestation of any risk of injury for TAS Mary and TAS Su, on 15 March. It was BH's presence in class and the risk which he posed, not that of other detainees, which led to the manifestation of this risk. iv) Failing to provide adequate information in relation to the history or incidents of actual violence, threatened violence, anti social behaviour and/or psychological information of detainee BH and incident prevention or reduction strategies. 609 On the evidence this particular was also established, for similar reasons to those given in relation to TD. It is unnecessary to repeat what I have earlier said in this regard. The situation remained unchanged in relation to BH. There were no incident prevention or reduction strategies in place for BH, as there should have been, despite his known propensity for violence and the inadequacy of the School Rules, in his context. Nor was there a behaviour management plan, as there should have been. I am entirely satisfied that the particular was established to the requisite degree. v) Failure to provide adequate information, instruction and training including on self defence and/or behaviour management. 610 For similar reasons to those given in relation to this aspect of the TD charge, this particular must be accepted as having been proven in relation to this charge. 611 Given the events of 15 March and the risk which then manifested, again exposing TAS Mary to the risk of injury, it must be concluded that this particular was established in her case. Her evidence as to what she was called on to do, in the situation, both in relation to BH and that in order to ensure that the second detainee did not go to BH's assistance, there can be no doubt that this particular was made out, so far as she was concerned. 612 I am unable, however, to see how these failures had the necessary connection with the risk of injury to which TAS Su was exposed that day, she observing, but not being involved in the episode in the quad. That aspect of the particular was not established. 613 Particular (c) provided: c) The psychological injuries to TAS Mary and TAS Su were a manifestation of the risk. 614 On the evidence, this particular was also established. The defendant accepted liability for TAS Mary and TAS Su's workers compensation claims, which were investigated by Ms Koussa. 615 Not only were teacher Ron, TAS Mary, TAS Pam, A/P Rebecca and the Principal exposed to BH's violent behaviour in class that day, so were other DET staff, including TAS Su, when BH was removed to the quad. The evidence leaves no room for doubt, that TAS Mary's injuries resulted from the risk to which she was exposed on 15 March, as I have explained. 616 The defendant argued that TAS Su, outside the class and not at physical risk from BH's behaviour, was merely subjected to witnessing a distressing event, necessary to ensure staff safety, when BH required restraint. That this was a violent and distressing confrontation, is undoubted, given the evidence of various witnesses who observed it, as well as those involved in it. 617 It was well known to the defendant that exposing its employees to such situations carried with it the risk of injury, including psychological injury, even if the violence was not directed at them personally. That risk was addressed in the defendant's written policies. That this event, as it unfolded, could give rise to such an injury manifesting, even for those merely observing what occurred, was foreseen. That it was necessary to deal with BH at that point, given the defendant's failures to preclude BH from class, which gave rise to that need, is not a basis upon which it can be concluded that this particular was not made out so far as TAS Su was concerned. That others who witnessed this situation were not injured and TAS Su was, also cannot lead to that conclusion, as was argued by the defendant. On this point, the evidence of Ms Koussa and the treating doctors must be accepted. 618 In its case the defendant also criticised teacher Ron, TAS Mary and TAS Su for watching what was occurring with BH outside the classroom. I have dealt with how the Principal's direction was not heeded, unsurprisingly, by teacher Ron and TAS Mary, given the situation in the classroom. There was no evidence that such a direction was given to other staff not to watch what was going on in the quad and there was no criticism directed to them for watching what occurred. To the contrary, it was TAS Su's evidence that DET staff were required to observe how DJJ staff dealt with detainees at Putland. Potentially they were witnesses, in the event that any detainee complained. 619 That a direction to leave and not to watch was not an adequate way to control the risk to which the staff were exposed on 15 March, was abundantly clear. I am unable to accept that the staff can fairly be criticised for their reaction, particularly when consideration is given to the Principal's description of them and their work, over the years of their employment. 620 As at 15 March, it was well known at Putland that TAS Mary and other staff, including TAS Su, shared serious concerns that staff safety was being put at risk at Putland. It was well known that other staff had already suffered injuries while working there. The events of 15 March, followed on the heels of the events of 10 March and how TAS Mary's repeated concerns about the escape and the problems with system failures that day had been deflected and refused to be discussed. Undoubtedly, what occurred on 15 March with BH resulted in the manifestation of this risk and contributed to the psychological injuries which TAS Mary and TAS Su both suffered. 10 - 17 March Matter Number 1392 of 2006 621 The charge was: Between 10 and 17 March 2004 at the Putland Education and Training Unit situated within Cobham Juvenile Justice Centre, New South Wales, the State of New South Wales (Department of Education and Training) whose address is 35 Bridge Street, Sydney in the State of NSW, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary and TAS Su, in that the defendant allowed there to be a psychologically unsafe place of work contrary to the duty under section 8(1) of the Occupational Health and Safety Act 2000. 622 Again, for reasons which I will explain, I am satisfied that this charge was made out, the necessary causal connection between the defendant's acts and omissions being established, to the requisite degree. The social support charge - was it inadequately framed? 623 It was argued by the defendant that this charge was so 'absent or inadequate are(sic) so uncertain as to be meaningless and ambiguous'. The resulting uncertainty was such that the pleadings were bad and incapable of supporting any conviction. (See New South Wales v Fahy (2007) 8232 CLR 486 at [81] - [72] and Workcover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure (t/as Australian Inland Energy and Water) (2003) 128 IR 257 at 261.) Further, given the way in which the charge was framed, the only events of any relevance, were those which occurred on the days between 10 and 17 March, namely, 11, 12, 13, 14 and 15 March. 624 I am unable to accept the defendant's submissions as to these difficulties. The drafting 625 The charge clearly identified the essential elements of the offence, two of which were conceded, namely that at the relevant time, the defendant was an employer and that it employed employees at its place of work at Putland. The other essential ingredients alleged were that the defendant 'failed to ensure the health, safety and welfare at work of all of its employees, and in particular TAS Mary and TAS Su' and, that the defendant's acts and omissions in allowing there to be a 'psychologically unsafe place of work', led to the manifestation of the risk. 626 The particulars of the charge raised the factual matters said to demonstrate the causal connection between the defendant's acts and omissions and the manifestation of the risk of such an injury. They were: a) There was an actual risk of the absence of or inadequate management support increasing the potential danger of an individual teacher's aide special ("TAS") developing occupational stress, namely, post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders. b) Aspects of the defendant's psychologically unsafe place of work were any of the following: i) Failure to provide social support on 10 March 2004 in the form of supportive management or leadership when the Principal left the unit to follow three escaping detainees and thereby left the employees of the unit without adequate support. ii) Failure to provide social support in the form of adequate consultation when the Principal did not make herself aware of the incident on 10 March 2004 in which class teacher Ron and TAS Mary were subject to abuse in the class room and there was not an adequate response to an emergency summonsing for help. iii) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary brought to the attention of the Principal, after the Principal returned from chasing the escaped detainees, that during the 10 March 2004 class room incident an urgent request for help went unanswered. iv) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary on 10 March 2004 at an impromptu staff meeting attempted to discuss safety issues with the Principal. v) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary attempted to raise and discuss matters with the Principal at the next weekly staff meeting after the 10 March 2004 class room incident and escape incident. vi) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when the Principal never sought the views of TAS Su about the bomb scare, class room fight and escape on or after 17 March 2004. vii) Failure to have in place an occupational health and safety committee established by the employer and Departmental employees for the place of work. c) The psychological injuries to TAS Mary and TAS Su were a manifestation of the risk. 627 While the defendant criticised the drafting of the particulars of the charge as being ambiguous and overlapping, I am unable to accept the submission. In their individual terms, the particulars are quite clear. Certain further particulars sought by the defendant were provided by way of explanation of these particulars. Until final submissions, no problems with the particulars were agitated by the defendant. 628 Whether proof of any or all of these particulars is capable of establishing the offence charged, is a different question, to which I will return below. Were the events of 10 and 17 March relevant to this charge? 629 The defendant argued that given the way in which the charge was framed, it was only the events occurring on 11-16 March, with which the charge was concerned. The events of neither 10 nor 17 March, were relevant. This was because the way in which the charge was framed, referring to the period 'between 10 and 17 March 2004'. 630 It was argued that while this was a technical point, it was a good one. (See R v Janceski (2005) 64 NSWLR 10 at [90].) The prosecution submitted that it was not. 631 The argument rested on the meaning of the word 'between'. In my view, the defendant's submission cannot be accepted, given the terms of the charge, including the particulars, which expressly refer to events on both 10 and 17 March. It is apparent that the charge was intended to include what occurred on both days. That was the way in which the parties conducted the proceedings. It was not until the defendant filed its final submissions, that this point was taken. 632 Even if the argument was a good one, the difficulty is curable, as the prosecutor submitted. The period of an alleged offence is an essential factual ingredient. The defect raised by the defendant is one which may be cured by amendment of the charge. (See Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady [2003] NSWIRComm 219 at [38] - [44].) If it be necessary, I am satisfied that the interests of justice require that the necessary amendment to this charge be permitted, so that the matters raised in relation to 10 and 17 March may be considered, as the particulars of the charge contemplate and to the extent necessary, I make that order. Did the exposure to the risk occur at work? 633 Again, on the evidence there is no question that the risks to which TAS Mary and TAS Su were exposed between 10 - 17 March, which put staff safety at risk, occurred while they were at work. The allegation that the place of work was psychologically unsafe 634 Section 8 of the OHS Act does not refer to a psychologically safe, or unsafe, place of work. It is rather concerned with ensuring that any premises controlled by the employer, where employees work, are safe and without risks to health; that any plant or substance provided for use by employees at work is safe and without risks to health when properly used; ensuring that systems of work and the working environment of employees are safe and without risks to health; that information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, is provided; and with providing adequate facilities for the welfare of the employees at work. 635 It was the prosecutor's case that if a psychologically unsafe place of work existed, an employer had failed to ensure employees' safety at work, as s 8(1)(c) required. Such a place of work did not provide a safe working environment, which did not risk employees' health. There is obvious force in that argument, particularly having in mind the defendant's written policies, directed to ensuring the psychological health of its employees. 636 In resisting this approach to the construction of the section, the defendant relied upon common law concepts of 'known susceptibility' or 'vulnerability', 'in the sense that the risk of psychological injury to a person could be reasonably said to be known or within the knowledge of the employer'. It argued that this charge was novel in this jurisdiction and that in truth, the particulars of the charge could best be described as 'vocational dissatisfaction' felt by TAS Mary and TAS Su, in relation to the Principal, rather than being causative factors of occupational stress. 637 On the evidence, it must be accepted that the matters referred to in the particulars of the charge undoubtedly resulted in TAS Mary and TAS Su being strongly dissatisfied with the Principal's approach to their safety. That the events which gave rise to such dissatisfaction might also have involved exposure to a risk to safety, which caused psychological injury, cannot simply thereby be excluded. Dissatisfaction with a person who is responsible for the state of affairs which led to an employee being injured, is hardly surprising and cannot of itself be evidence that an offence has not been committed by an employer. The real issue is whether there was exposure to a risk to safety which resulted in psychological, or physical injury of the employee who also felt vocational dissatisfaction, as a result. 638 The duty imposed by the section does not envisage that before an offence is committed, an employer must be aware that a particular employee is at risk of suffering a psychological injury. The statutory duty requires an employer to be proactive in ensuring that no employee suffers such an injury, whether or not the employer is aware that a particular employee has a particular susceptibility or vulnerability to such an injury, although that might be a matter relevant to a defence. 639 The difficulty with the thrust of much of the defendant's arguments about vocational dissatisfaction and employees not putting it on notice that they were not coping at work, was that they failed to have sufficient regard to conclusions reached in binding Full Bench authority. That included what was said in Daly Smith Corporation (Aust) Pty Limited v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 at [45]: [45] The appellants also contend, in relation to the requirement upon the prosecutor to prove causation, that issues of causation, in the context of the law of negligence, should also be considered as relevant to occupational health and safety prosecutions which require proof of causation as an element of the offence. We do not agree. The scope of the statutory duty under the occupational health and safety legislation is different from the duty of care in negligence cases. The former is an absolute duty to ensure the safety of all persons either at work or at an employer's place of work: see, eg WorkCover Authority (NSW) v Coffey Engineering Pty Ltd (No 2 ) at [16]. The latter duty is a duty to take reasonable care to protect others against unreasonable risks: see, eg Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478 per Kirby J. In addition, the requirement to prove causation in the context of a prosecution under the occupational health and safety legislation, in turn, requires proof of the existence of a nexus between a relevant failure on the part of an employer to ensure health, safety and welfare and resultant risk to safety. Causation in the context of negligence requires the nexus to be between the defendant's conduct and a resultant injury. The absence of social support producing a psychological injury 640 It was argued for the defendant that the prosecutor had not established that the absence of social support relied on, could produce psychological injury. This followed because, on the evidence, psychological injury arose in one person after a critical incident, but not in others present, such as was the case on 15 March, when TAS Mary sustained an injury, but TAS Pam, who was also present, did not. Similarly on 17 March, that TAS Su was injured but not teacher Mauro, who TAS Su was working with that day, demonstrated that the necessary causal connection could not be established. 641 I am unable to accept these submissions. It was common ground amongst the experts and contemplated by the defendant's own policies, that there was a risk of psychological injury being sustained, when employees were repeatedly exposed to acts of violence and threatened violence and other anti-social behaviour by detainees at Putland. The absence of adequate social support did not itself give rise to the risk of injury here in question. Social support was a way in which the defendant could control such a risk, if it could not be eliminated, that risk being one not created by the defendant itself. 642 It follows that if it is found that the necessary social support was not being provided, with the result that when the risk in question materialised, an injury resulted, the defendant's failure to have in place an available way of controlling the risk, will establish the offence. The fact that the risk materialised with the result that an injury was sustained by some employees exposed to a particular critical incident, but not others, is not evidence that the risk did not exist, or that it did not manifest, or that it was controlled. Rather, it reflects the evidence that those employed in a working environment such as this, where they are repeatedly exposed to such incidents, may be injured by such repeated exposure and that the precise incident which will result in the injury manifesting in a particular individual, is not predictable - 'the straw that breaks the camel's back' analogy used by various of the witnesses, or what makes the glass 'finally overflow', used by others. 643 It is in that light that certain of Professor Tennant's evidence in cross examination becomes particularly relevant. He agreed for example, that the defendant's written safety policies ought to have been implemented at Putland. He agreed that managers ought to have been trained to recognise employees who were not functioning or who were showing signs of distress and that they should have done something about such a situation, if it was identified. He also understood that staff attended regular meetings where they had 'every avenue to discuss critical incidents.' Even the Principal's evidence established that there was no foundation for that view of how Putland operated. 644 In fact, in her advice to Ms Koussa, the Principal identified that both TAS Mary and TAS Su were at risk of injury. The defendant's polices recognised that social support being provided to Putland staff, was a way of controlling the risk of injury to which staff were repeatedly exposed. These policies were not operating, to the contrary, the approach being adopted by the Principal, was undermining the system which was operating. Cumulative trivial stress 645 The evidence of Professor Tennant was that cumulative trivial stress may contribute to an adjustment disorder, but that may be regarded as an abnormal or exaggerated stress response, which could not be predicted, unless the employer was aware of the vulnerability. 646 The difficulty with this evidence was that I am unable to accept that the stress to which TAS Mary and TAS Su were subjected in the course of their employment, given the violence and threatened violence they were always at risk of, can properly be regarded as trivial. Each detainee was regarded by the defendant as giving rise to serious safety risks for its employees. When those risks materialised between 10 and 17 March, there was nothing trivial about what occurred. For TAS Su, what she was exposed to was, undoubtedly, less serious than what TAS Mary experienced. Nevertheless, on the evidence, it must be accepted that even what she was exposed to in this period, given her then known anxiety as to her safety at Putland, was sufficient to have given rise to a risk of injury. 647 It was Dr Brown's evidence that cumulative stress, which resulted in psychological injury, could not be detected by an employer, who could only say retrospectively that something had precipitated a particular injury. He explained that the intent of systems like the defendant's EAP was thus to help stop such problems escalating and thereby preventing psychological injury. 648 Dr Lamarque's evidence was that on his understanding, TAS Su had functioned well and coped at work until March 2004. She then had concerns about safety issues and was not comfortable, but it was when she witnessed the assault on 17 March, that she finally had a very strong reaction which developed into post traumatic stress disorder. That view was entirely consistent with those of the Principal and finally of Dr Brown and Professor Tennant in cross examination, as to how her illness could be explained, given her experiences at work. The proper safety systems designed to detect and prevent psychological injury to those becoming increasingly at risk of such injury, was simply not operating at Putland. 649 The defendant's approach in its paper policies, recognised that repeated exposure to violence, threatened violence and other anti-social behaviour, put its employees at risk of injury, both physical and psychological. The defendant had an obligation to prevent such an injury manifesting. That obligation had to be met, irrespective of whether or not the defendant could predict which particular incident might finally result in an injury being sustained by a particular employee - be it a physical injury, or a psychological injury, or indeed both. That was certainly why the defendant's systems included giving employees access to social support of various kinds, including the EAP system. The policies also expressly required the support of the Principal, who was given particular responsibility for identifying and dealing with those at risk of psychological injury at Putland. This was because it was entirely predictable and indeed predicted, that employees would be injured by their experiences at this workplace, without such measures being implemented effectively. 650 This did not occur at Putland, despite the Principal and the supervising A/P having each identified that all was not well with either TAS Mary or TAS Su, before they finally left work, injured. It follows that the submission that there were no indicators specific to TAS Su and TAS Mary that they were not coping in their role as a TAS, is simply not open on the evidence. Vocational concerns The defendant submitted that both TAS Mary and TAS Su had vocational dissatisfaction over matters perceived as putting staff safety at risk, but argued that this was irrelevant to the question of causation. This is difficult to accept. It is not surprising that concerns about the Principal's attitude, clearly a matter of 'social support', when serious safety issues are being raised with her, might cause 'vocational dissatisfaction', if those concerns are dismissed out of hand, even when serious. That such a reaction occurred, in the case of TAS Mary, TAS Su and other employees, cannot sensibly lead to the view that the lack of that support could not also be causally connected with a psychological injury, when later sustained by two of the employees who had that dissatisfaction, in circumstances where their personal safety is put at risk. To the contrary, concerns about safety issues being raised, was one of the factors that managers were directed to take account of, in seeking to identify those at risk of psychological injury, in the defendant's Occupational health and safety management - a guide for the principal or manager policy . The problem was that the policy simply was not in operation at Putland. The defendant's systems - risk assessment and risk control 651 It was the detainees with whom the defendant's employees worked, who engaged in violence and other conduct, which put staff safety at risk. As I have explained, there was a tool, Hazpak, available to be used to assess the risk which any particular detainee presented, or any combination of detainees. That tool was used to assess the risk of the classes detainees were permitted to undertake at Putland and the equipment available to be used in those classes - they were all assessed to be of low risk. The tool was not used to risk assess detainees themselves, despite what the applicable DET policy required. 652 Such assessment, in so far as it was undertaken at all, once detainees were permitted to undertake classes after completing the Access and Focus programmes, was undertaken at morning briefings, on the Principal's evidence, using the principles underlying Hazpak. All detainees were treated as dangerous and giving rise to a high risk to staff safety. No particular risk assessment was conducted in relation to individual detainees or groups of detainees and their potential for interaction with each other, even though particular groupings, including racial groupings, were known to increase the risk of violence breaking out at Putland. This approach was inconsistent with Professor Tennant's views as to the need for individual risk assessment of detainees. 653 No matter what level of risk such daily assessments resulted in, it seems that any established hierarchy of additional safety measures, available to be routinely implemented when heightened risk was identified, did not exist, other than in an ad hoc way, as I have explained. 654 Instead, consideration was given to detainee exclusion at DAP meetings and during the course of a day. Exclusion of a detainee from a class was regarded to be a serious measure, on the evidence, one staff were generally reluctant to resort to, given the importance of detainees at Putland being given access to education. 655 Otherwise, additional available steps such as having a DJJ officer stationed in the classroom, for instance, was also available to be considered, but not often implemented. This measure seems only to have been used when one to one supervision was deemed necessary for an individual detainee, identified as at risk of violence from other detainees. It was not implemented when staff were identified as being at heightened risk - even for example, with BH on 15 March. On 10 and 15 March, TD and BH were each returned to class after being removed for having engaged in behaviour which on any view, put staff safety at risk. Not only had both TD and BH put TAS Mary's safety at risk by their threatening behaviour, they had both assaulted teacher Ron. This was only possible because both were permitted to return to class. 656 The undoubted result so far as TAS Mary was concerned, was a psychological injury. So far as TAS Su was concerned, she was already concerned about her safety at Putland; she then observed TAS Mary's repeated failure to have a serious failure of the safety system on 10 March discussed and addressed by the Principal. She also then observed the unfolding of BH's meltdown in the quad on 15 March, after he had been removed from class by three DJJ officers who were then unable to control his further outburst and had to receive further assistance, before he was able to be controlled and removed. On 17 March, another incident occurred in the class in which TAS Su was working. 657 Given the evidence of the regularity with which incidents arose at Putland, where staff safety was put at risk in classes, despite the measures in place to deal with incidents, once they arose, that the daily method adopted for risk assessment of individual detainees at morning briefings, was not of itself capable of ensuring safety, was quite clear. That system did not change, until after the events of March 2004. On 17 March, the system again did not identify that the detainee involved in the incident in TAS Su's class that day, would attack another detainee. While that detainee was adequately dealt with under the defendant's practical system, once his violent behaviour erupted, it was this incident, of a low level itself, so far as TAS Su was concerned, which triggered her injury. 658 Despite the defendant's submissions as to the operation of its practical safety system, it may not be overlooked that it also had various other practices and policies in place, designed to prevent the risk of any psychological injury materialising, notwithstanding the violence and threats to which staff were repeatedly exposed at Putland. As I have explained, the evidence showed that aspects of those practices and policies were not adhered to at the relevant time and that the defendant otherwise failed to prevent the risk of injury materialising, in the case of TAS Mary and TAS Su, in accordance with the paper systems which it had designed to deal with this risk. On 17 March, TAS Su's exposure to this further incident, resulted in her injury. The causal connection between the defendant's acts and omissions and the materialisation of the risk. The expert evidence as to social support at Putland 659 I have earlier outlined the experts' evidence. The parties' each advanced criticisms of the expert evidence called by their opponents. I dealt with that directed to Ms Knox Haly, earlier in the judgment. Some of that criticism had a foundation, as I have found. 660 The prosecution's criticism of Professor Tennant's evidence and the conclusions which he came to, were directed to the way in which he had been instructed, having been provided with volumes of material, including transcripts and documentary evidence, with the result that there was no way of knowing, it was argued, what material the various opinions he had expressed had been based upon. It was also argued that his cross examination showed that he had not read all of the material with which he had been supplied and that he had not appreciated crucial factual material, which could have been gleaned from material he had been supplied with. The result was that the Professor had not appreciated how systems at Putland had operated in practice and was not aware of relevant factual material, when preparing his reports. Similar criticisms were directed at the evidence of other of the defendant's experts, including Dr Brown and Mr Rees. 661 The way in which the Professor's report had been produced was also attacked as leading to the result that it was not the independent product of an expert, uninfluenced as to form and content, by the exigencies of litigation. 662 It was the defendant's case that the criticisms of its experts had no foundation and that it was necessary to determine what the nature of the psychological injury sustained by TAS Mary and TAS Su was, because there could be different causative factors at work, depending on the nature of the injury. This was because the prosecutor had to establish 'sufficient causative link between the absence of social support as particularised in the charges and the manifestation of psychological injury.' 663 It was also argued that the defendant's expert evidence was called by reference to a set of factual assumptions, which remained valid and that the prosecution's experts had been given factual assumptions, which had not been made out, which meant that Ms Knox Haly's evidence could not be accepted. It was also argued that the factual material put to the experts in cross examination by the prosecution, was inaccurate or incomplete. 664 It is convenient to observe at this point that, of course, each of the expert's opinions and conclusions must be considered in the light of the conclusions reached on the evidentiary contests between the parties. That must have an impact, given that the experts each gave reports, expressed opinions and were cross examined, before those conclusions were reached. 665 Given these controversies, initially, from the written reports, it seemed that there was a substantial gulf between the opinions of the various experts. Nevertheless, those differences diminished in cross examination, as I earlier explained. 666 The evidence addressed the question of the social support actually provided at Putland and the experts were each cross examined about what that evidence had showed, on the basis of assumptions which they were invited to make. 667 The evidence dealt both with what had occurred, and, particularly that led in the defendant's case, what social support was provided at Putland, as a part of the defendant's practical systems. The prosecution case also addressed the paper systems intended to be operated at Putland, which were also concerned with employees being provided with social support, in order to protect them from psychological injury. That evidence revealed deficiencies, where certain of the defendant's safety policies were not operating as intended, as I earlier explained. That evidence, as well as the expert's opinions of these various systems, is all of relevance to an assessment of whether this charge, as particularised, was made out. Inadequate management support 668 It was the prosecutor's case that on the evidence, it had been demonstrated that the risk of psychological injury being sustained by staff such as TAS Mary and TAS Su, was increased by the absence of, or inadequate, management support being provided to employees at Putland, to help them cope with what they were being exposed to, when working with detainees in class. This was disputed by the defendant. 669 It was the prosecutor's case that the expert evidence showed a body of literature and research into the link between such social support and its ability to mitigate occupational stress and employee susceptibility to psychological injury. 670 It was the defendant's case that the literature suggested that psychological injury could be linked to specified factors in a workplace, (alone or in combination), but that the mere existence of such factors did not establish the necessary causative link, for the purpose of criminal proceedings. General indicators such as staff morale, complaints, absenteeism, workers compensation claims, incident reports, school atmosphere and questionnaires were relied upon in the prosecution case, it was argued, because it had failed to establish any indicators from either TAS Mary or TAS Su, that were sufficient to have alerted the defendant that they might be at risk of injury, at the relevant pleaded dates. 671 I am unable to accept that argument. The defendant's policies recognised that its employees were at risk of psychological injury. Consistently with the requirements of the OHS Act, its policies also envisaged that staff would be able to raise and have safety concerns dealt with. It was the common view of the experts that management support, when employees had such safety concerns, would assist them in coping with what their work confronted them with, so as to prevent injury, although there was disagreement between them as to whether what was in place at Putland, provided the necessary support. Plainly, the provision of such support was a practical, proactive way by which the defendant could have protected its employees from sustaining a psychological injury. (See WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85.) 672 The evidence clearly showed that various of the defendant's paper policies, as well as various of its systems, were designed to ensure that adequate management support was provided to its employees, so as to ensure their safety and to prevent psychological injury, given that the risk which detainees' violence and other threatening behaviour posed, could never be entirely precluded. The implementation of these policies at Putland depended on the Principal. It was with this evidence in mind, that Ms Knox Haly's view, that even good social support provided by supervisors such as an A/P, could be undone by the absence of such support from a Principal, must be considered. To my mind, that is not only obvious, as a matter of logic, but on the evidence, an unavoidable conclusion. The defendant's practical system required safety concerns to be raised by a TAS with an A/P, yet the Principal dismissed and did not deal with these concerns, when raised with her by A/P Rebecca, who was TAS Mary and TAS Su's supervisor. In their evidence they each described their attempts to have their supervisor raise their concerns with the Principal. A/P Rebecca's evidence confirmed her failure. The Principal also repeatedly rebuffed attempts to raise such matters directly with her, even in relation to the system failures on 10 March. The evidence clearly showed that the required management support was not provided at Putland, at the relevant time, so far as TAS Mary and TAS Su were concerned. 673 The evidence was that safety was known at Putland to have been a matter of ongoing concern to staff, including TAS Mary and TAS Su, in the period leading up to the events in March 2004. Some staff were fearful. There was evidence that A/Ps had raised safety issues of concern to staff, with the Principal, who had dismissed them. A/P Rebecca, for example, explained in her cross examination that she had raised the question of concerns about the mix of students in class, the numbers in class and particular students in class and staff concerns about managing them and that the Principal's response was 'Maybe these people are in the wrong place, or wrong school, (sic) shouldn't be working here.' The concerns were not addressed or resolved. 674 Both the Teachers Federation and the PSA had pursued disputes about safety matters; staff had directly raised concerns with their unions about how the building programme was impacting on their safety in a number of ways; some staff had already taken stress leave, or had made workers compensation claims, for injuries suffered at work; there had been requests for staff to receive personal defence training, which the Principal had investigated, but had not been able to arrange. On Mr Armstrong's evidence, the defendant's District Office was also aware that psychological injuries were being sustained by staff at Putland. 675 There was no evidence of any steps taken by the defendant to investigate this situation at Putland, or to take any additional steps, to ensure that the safety of employees such as TAS Mary and TAS Su, was not being put at risk, given the way in which Putland was operating. 676 In Ms Koussa's report in relation to teacher Ron, Ms Koussa noted that the Principal denied any awareness of the 10 March incident and that she had told Ms Koussa, that she would need to investigate it further. On the evidence, the system in place at the school involved teachers and TAS providing misbehaviour reports immediately after an incident. Teacher Ron and TAS Mary's report was received by the A/P by 12.08 pm that day. A copy was kept in a folder at the school, so that it could be read by the Principal. The Principal never reading this report, explains perhaps why she gave the Department no serious incident report about the failure of the duress alarm system, as was required, and repeatedly brushed off TAS Mary's attempts to discuss with her, the failure to respond to the duress alarms sounded that day by teacher Ron and TAS Mary. Given, however, her own evidence of her conversation with teacher Ron on 10 March, when the Principal claimed she had advised him that he had been assaulted, her advice to Ms Koussa that she was not aware of the incident, cannot have been accurate. 677 Ms Koussa noted the Principal's view that teacher Ron was generally scared of students, which was reflected in how he allocated points, namely 'to prevent students from becoming angry'. This approach was inconsistent with the School Rules, on the evidence, but seemingly, was another matter which the Principal did not address. If true, it reflected a situation where the School Rules were known not to be operating in a way which could have ensured safety in teacher Ron's classes, where TAS Mary worked. 678 The Principal told Ms Koussa that she did not believe that teacher Ron's personality suited the Putland working environment. Contrary to what the Principal told Ms Koussa in relation to TAS Mary, she said in relation to teacher Ron, that 'incidents are many and go with the territory' of working with these students. This was undoubtedly correct, but the contradiction between this and what she had told Ms Koussa in relation to TAS Mary, namely that there were 'fewer critical incidents' at Putland and that 'staff tend to overreact when an incident occurs', was curious, particularly given that teacher Ron and TAS Mary worked together, delivering the General Education programme and had been involved in the same incidents in March 2004. Despite these views, it seems that the Principal also did not detect that teacher Ron might be at risk of psychological injury at work. She did note, however, that he had become increasingly concerned about the safety of staff working at the school and that he was a union representative. 679 As to TAS Mary, the Principal told Ms Koussa she regarded TAS Mary's capacity to be in difficult situations, to be declining, that she felt more hesitant and less safe and that it was overdue for her to look elsewhere for work 'for her own well being'. 680 A/P Rebecca was also nominated to speak to Ms Koussa about teacher Ron and TAS Mary. She told Ms Koussa that cumulative factors had led to teacher Ron leaving the school, including his treatment by another A/P, who had left at the end of 2003; a series of incidents of abuse of staff and the loss of his assistant TAS Mary, after the 15 March incident. She noted that on 10 March, the school had been left vulnerable, because many staff had responded to the assistance call regarding the escapees, leaving 'support thin on the ground'. This may explain the Principal's evidence, that immediately on her return to the School on 10 March, after pursuing the detainees, she was informed of a directive by Mr Muir of the DET, that in future, staff were not to leave Cobham in pursuit of escaping detainees. 681 A/P Rebecca told Ms Koussa that TAS Mary's work was excellent and that she was a very valued member of staff who had a 'big thing' about safety, but that the Principal did not acknowledge or support her concerns. The Principal did not regard the 10 March incident as serious, but that in her view, that incident and the 15 March incident were extreme. 682 In relation to TAS Su, the Principal expressed the view that she had problems 'working with our sort of kids'. She had understood the risks of working at Putland on an intellectual, but not emotional level, until directly involved in an incident. This was true of many staff. She also said TAS Su had problems forming relationships with detainees and indicated to them that she did not trust them, acting as a gatekeeper, rather than a support person. The Principal explained that the 15 March incident and the bomb scares were 'par for the course' at Putland and that she could not see how they would affect TAS Su, who was not directly involved. She could not remember an incident in which TAS Su had been involved the previous year. The Principal explained that a number of people raised concerns about feeling unsafe, including TAS Su, who spoke out at staff meetings. Yet, the Principal had not observed symptoms of distress on her part, other than 'the odd occasion where TAS Su was teary and felt like she was not coping', but not directly before she left in March 2004. The evidence was contradicted by Jane M and A/P Rebecca, who each described the BH incident as extremely serious, as it must have been, given his transfer to Kariong. 683 A/P Rebecca was nominated to speak to Ms Koussa about TAS Su. Her advice was that TAS Su felt undervalued and unsupported by the Principal, because safety was not changing at Putland. Some staff did not feel safe and TAS Su did not feel heard, when she raised safety concerns at staff meetings. She was a bit of an advocate for safety in meetings. The Principal cut her off and did not allow her to finish comments in meetings. A/P Rebecca's view was that the incident in TAS Su's class on 17 March was not a major one, but earlier there had been a series of extreme incidents. One in 2003, where there had been a fight between two students; the 10 March incident; the bomb scare and the 15 March incident. A/P Rebecca described TAS Su's behaviour on 17 March, after she left class and stated that 'What people do to survive here is leave, they don't see it changing'. 684 Ms Koussa's reports also confirmed that in March 2004, policies which were designed to ensure staff at Putland were not injured at work, were not in operation. Given the views which she expressed to Ms Koussa, the Principal was plainly aware that TAS Mary and TAS Su were both at risk of injury, in March 2004. 685 Had the defendant's 2000 'Guide to Occupational health safety and injury management', been in operation at Putland, steps which would have dealt with the risk so identified, would have been taken. That policy provided that 'stress is considered a psychological hazard and, within the context of a workplace risk management system, must be identified, assessed and controlled where possible'. It also required the Principal to know hazards in the workplace; to find ways to eliminate or control them; to warn employees about the hazards and to train them in safe work practices. 686 The evidence can only lead to the conclusion that the Principal was clearly aware of the hazards at Putland to which TAS Mary and TAS Su were succumbing in March 2004, given the risks to which they were repeatedly exposed at work, but did not act to deal with what she had become conscious of. The necessary management support of staff was absent. It cannot be doubted that the necessary causal connection between the defendant's acts and omissions, and the risk of injury to which TAS Mary and TAS Su were exposed in the period of the charge, was established. Was it necessary for the prosecution to establish that TAS Mary and TAS Su had symptoms of psychological injury, or a known susceptibility to such injury, before it was sustained, in order to make out the charge? 687 Despite what the Principal's advice to Ms Koussa actually revealed, namely, that their susceptibility to psychological injury had become apparent, I accept that it was not necessary for the prosecution to have demonstrated that the defendant had, or should have detected that TAS Mary or TAS Su were not psychologically coping at work, before they were injured in March 2004. The OHS Act requires employers to be proactive as to ensuring safety and not merely reactive, when employees raise concerns, or injuries occur. They certainly must act, upon becoming aware that particular employees are at risk of such injury. 688 On the evidence, it was known to the defendant that its employees may not themselves be aware that they were sustaining such injuries. It was thus not necessary that TAS Mary or TAS Su make it known to the defendant that they were vulnerable to psychological injury, or that they could no longer perform their work safely, in order for the defendant to commit an offence under the OHS Act, or for the prosecutor to be able to establish that an offence had been committed. 689 In any event, it was known that employees including TAS Mary and TAS Su were raising concerns about their safety and, given what the Principal told Ms Koussa, she had the view in March 2004, that neither TAS Mary nor TAS Su were coping adequately with what their work required of them. Given that opinion, the Principal's failure to take any steps, undoubtedly, available under the defendant's various policies, to deal with her views that they were not coping, and her repeated refusal to deal with the safety concerns which they sought to raise with her, including in relation to the serious failure of the safety system on 10 March, left the defendant in a position where it could not sensibly be argued that it had no forewarning that TAS Mary and TAS Su, were not coping psychologically and were at risk of psychological injury. 690 The DET had in place a policy requiring stress management and injury prevention. It was not operating. On the Principal's evidence, neither she nor the other executive staff had been trained in how to apply that policy and, it seems, instead, the Principal simply sought to apply commonsense, rather than what this policy envisaged, in order to detect anyone who was no longer coping and was at risk of an injury. That evidence was corroborated by A/P Jon and other A/Ps. Given what the Principal told Ms Koussa of her perceptions of TAS Mary and TAS Su, she then believed that they were either not suited to, or coping with, the work of a TAS at Putland. Yet she did nothing, it would seem, to act on the concerns which she in fact had, other than perhaps to treat them in the way described by others, belittling them when they sought to raise their concerns, brushing them off and refusing to answer their questions of her. 691 Perhaps in this way, the Principal sought to make a move from Putland attractive to TAS Mary and TAS Su. Certainly it became attractive to A/P Rebecca, their supervisor, who described her reasons for leaving Putland as her concerns about safety and that nothing was being done to address them. A/P Rebecca had no success in having their concerns addressed. There was evidence that even the school counsellor experienced the same difficulty. It became apparent that TAS Mary and TAS Su were being affected by this situation, yet it was not addressed. 692 In so far as any responsibility for stress management was delegated to the A/Ps who had a supervisory role for other staff at Putland, they also had no relevant training or instruction, in dealing with such matters. It was the Principal's evidence that how the supervision was provided by a particular A/P to the A/P's supervision group, was a matter left entirely to them to determine. So, it was, for example, the evidence of A/P Jon that while he appreciated that supervisors had a role to play in detecting warning signs that staff might be suffering from psychological injuries, of which they were not themselves aware, it was still left to individual staff to report to their supervisor, if they felt stressed. 693 Consistently with this evidence, it was the evidence of A/P Rebecca that she had noticed before these events in March 2004, after which TAS Su took sick leave, that she was not herself and seemed withdrawn. This did not lead to any action being taken at Putland, to ensure that TAS Su was not suffering from any injury, or vulnerable to one. 694 Further, while the system of teacher Day Books theoretically provided a means by which a teacher might convey such information to a supervisor, the Day Books were not always used for the purposes for which they were designed and supervisors were not, in fact, required to look at them. The Principal agreed that she never audited how the supervision groups were operating, even though the defendant's Occupational Stress Hazard Identification and Risk Management Strategy, contemplated regular monitoring, reviews or audits of Putland's stress management strategy. Nor was she aware of how individual A/Ps had organised their supervision groups. On A/P Rebecca's evidence, the concerns expressed by teacher Ron about his safety and his difficulty in coping, in his Day Book, were not read. That was not her practice. On TAS Mary's evidence, while she had good working relationships both with teacher Ron and A/P Rebecca, there was, in fact, not even any regular practice of the members of her supervision group meeting with its A/P. 695 That teacher Ron's entries in his Day Book provided the defendant with another indication that staff, including TAS Mary, were vulnerable to injury, was clear. There, he said for instance: AWFUL WEEK. Everyone's going on about my fat bell. Mary was scared by TD on Wednesday, 3 escapes, boring long meetings, arguments, confrontations with principals, losing votes and voting alone, and my son giving up his trade. The boys hate me unless I give them points the(sic) have not earned, everyone's manipulating and manipulative, I might be going mad, maybe everything's ok. 696 On the expert evidence, this and other entries in teacher Ron's Day Book needed to be dealt with, if TAS Mary's safety was to be ensured. 697 The OHS Act required that the possibility of this class of risk, the risk of psychological injury as the result of the need for the DET's staff to repeatedly deal with violence and the threat of violence, directed at themselves, other staff and detainees, should have been foreseen and dealt with at Putland, if staff safety was to be ensured. On the evidence the risk was foreseen, but various of the systems and policies designed by the defendant to preclude the manifestation of that risk or to control it if it occurred, were not operated as intended, given the approach adopted at Putland by the Principal. 698 The result was that both TAS Mary and TAS Su suffered psychological injury, a risk entirely foreseen. The approach that safety was a matter for the DJJ to ensure and the events of 10 - 15 March 699 The Principal's general approach was that safety matters were not matters for the DET, but for the DJJ. On her own evidence, she refused to discuss such matters with staff, when they raised them direct with her. She even refused to discuss the failure of the duress alarm system on 10 March, which TAS Mary and teacher Ron both sought to raise direct with her, that day and subsequently in staff meetings at which TAS Su was present. The general rule was that safety concerns had to be put in writing, to be provided to a supervising A/P to deal with. On the evidence of A/Ps such as A/P Rebecca, the Principal still then refused to deal with them. 700 There was also evidence of a view that the Principal bullied and belittled staff, who persisted in their efforts to raise safety issues, at daily DAP meetings, or at weekly staff meetings. The Principal disagreed, as did A/P Amanda and A/P Jon. Given the evidence of staff concerns as to safety matters; the Principal's own evidence as to her attitude to them; the evidence of staff persistence in pursuing such matters; the evidence of various staff, including teacher Ron, TAS Mary, TAS Su and A/P Rebecca, that the Principal's treatment of staff who sought to pursue such concerns, was not appropriate, must be accepted. There is certainly no reason why the evidence of TAS Mary, TAS Su or teacher Ron, about the Principal's approach to them, should be disbelieved, confirmed as it was by the evidence of A/P Rebecca. 701 TAS Mary sought to raise the duress alarm failure direct with the Principal on 10 March, as did teacher Ron that day. Safety concerns were also the subject of a general staff discussion on 10 March during a meeting, ongoing when the Principal returned from the pursuit of the escapees that day. On her own evidence, the Principal required the discussion to cease. Even when safety was raised again on Friday at the staff meeting, after the school had been closed in the aftermath of the escape, in the context of a suggested DET consideration of what had happened during the lead up to the escape, including TD's behaviour, the Principal insisted that these matters were not to be discussed. Despite the evidence of the heightened tensions amongst detainees, in the aftermath of the escape, confirmed by the records kept in the Log Books in evidence, the failure of the duress alarm system was never investigated by the DET, or the DJJ. 702 The Principal's evidence was that she had taken the course of refusing to allow staff to discuss the circumstances of 10 March, that day and subsequently, to save the face of certain DET staff, who, on information then known to her, appeared to have left open a door, at recess, which permitted the escapees to gain access to the second quad, from which they escaped through a classroom. This provided no sensible explanation of the attitude adopted. Plainly, it was contrary to applicable DET policy. There was no explanation for the failure to apply those policies at Putland. Copies were provided to staff, as being binding on them. They ought to have been applied by the DET. 703 On the expert evidence, such an approach was inconsistent with proper management support of staff with serious safety concerns, adequate to ensure that they were not susceptible to psychological injury, when required to deal with detainees engaging in physical violence or threatening it, in their classrooms. BH and 15 March 704 That situation next confronted TAS Mary on 15 March, when school next resumed. At the morning DAP meeting, the reports of serious problems at Cobham over the weekend, must have been passed on, in accordance with the normal practice. On Professor Tennant's evidence, recurring violent or threatening behaviour was more likely to be predictive of further violence than a history of such behaviour months or weeks ago. What was planned for that day, required teacher Ron and TAS Mary to take for a General Education class, the Impact class in which BH was enrolled. Teacher Ron's concern about BH's presence was raised before class with A/P Rebecca, but the class proceeded. The staff were instructed to apply the School Rules, in order to ensure safety. On Jane M's evidence, it was by then well known that those Rules had not been effective in ensuring BH's behaviour, in the past. Dissatisfaction with the Rules had triggered violent behaviour over the weekend. Teacher Ron had not taught this class before, although he and TAS Mary were aware of BH's reputation for violence. Despite their concerns, no other, additional steps were taken to ensure safety in class that day, despite the advice then given by DJJ, that all detainees, including BH required 'vvcs' - very, very close supervision. 705 On any view, the personal safety of TAS Mary, that of teacher Ron and other detainees in the class, for whom the staff had responsibility, was at risk that day. The risk materialised when BH began his rampage in the classroom. 706 When he was being restrained, outside the classroom, BH physically assaulted one DJJ officer. He had earlier thrown a chair at teacher Ron's head, only narrowly missing his head, before he was restrained by DJJ officers in the class, with some difficulty. BH was charged with an offence as a result of his assault of the DJJ officer. None was laid in relation to the assault of teacher Ron, even though it was the view of the Assistant Director of Cobham, that BH's conduct towards teacher Ron had been extremely serious. 707 It must be observed that the attitude of the two departments appeared quite different in a number of respects, including what detainee behaviour would be tolerated. BH had been earlier charged in relation to some damage which he caused to a television at Cobham. He was charged with assault of a DJJ officer, as the result of the events of 15 March. His damage to the classroom and its contents and his assault of teacher Ron, by way of contrast, led to no charges, indeed it was teacher Ron's evidence that the Principal dismissed the idea when he raised it with her. Nor was TD charged with his earlier assault on teacher Ron. 708 The two departments also differed markedly in their approach to self defence training for staff, required by the DJJ for staff at Cobham, but generally not provided by the DET to its staff at Putland, despite staff requests. They also had quite different approaches to the provision of information to staff about the history of detainee charges and their behaviour in custody. Such information was recorded and routinely provided to DJJ staff, but not made available to the DET staff in the same way. Indeed, to the contrary, the DET approach at Putland was that other than in relation to consideration of daily reports of behaviour at DAP meetings, such information was encouraged to be treated as irrelevant. In the result, staff had to rely on their memories of past detainee behaviour, when considering such daily reports. 709 BH was transferred to Kariong, after the events of 15 March. TAS Mary participated in and observed the entire episode involving BH, and TAS Su observed what occurred in the quad. While the Principal criticised TAS Mary, who did not respond to her direction to stop observing what was occurring with BH and to leave the classroom, it seemed, on the evidence of other witnesses, that what was occurring was quite transfixing. The expert evidence was that freezing was not an unusual response to such a situation. In any event, TAS Mary was still dealing with the other remaining detainee. She thought the Principal was directing her concerns to that other detainee. 710 The situation was being observed by other DET staff, including TAS Su, unsurprisingly, given how classrooms were configured around the quad, the noise and commotion which BH was making and the difficulties DJJ staff were having in controlling him. On the evidence, it seems to me that this situation can only have reinforced to DET staff who witnessed what occurred, including TAS Mary and TAS Su, the nature of the serious risks to which they were being subjected in their employment at Putland; concerns which the Principal had simply dismissed out of hand, when staff had repeatedly sought to raise their safety with her, as recently as the preceding Friday. That very morning, despite DJJ advice that all detainees required 'vvcs', classes went ahead on a new basis, without additional safety controls being put in place. 711 TAS Su's evidence was that she was very affected by what she observed. There is no reason to doubt that evidence, particularly having in mind the evidence of treating doctors and experts. TAS Mary took sick leave from 15 March and did not return to Putland. Given even the Principal's description of TAS Mary, her attitude and her approach to her work, that she was severely affected by what occurred that day, to the point of injury, cannot be doubted, especially given the medical evidence. 712 All of this resulted, as I have found, because the defendant did not take steps available to deal with the heightened risk which BH posed, even as his behaviour deteriorated to the point of extraordinary violence. That this was psychologically unsafe cannot be doubted. 17 March and TAS Su 713 On 17 March, TAS Su was working in class when another fight broke out between detainees. While she does not appear to have been at personal risk of injury that day, it seems that this was the final straw for her, as it was described in the evidence. Thereafter she was simply unable to cope any longer, despite further attempts to do so. Her injury prevented that attempt succeeding. This was the first occasion at Putland that she herself had to use her duress alarm to call for assistance, after the system failure on 10 March. Given what had transpired since 10 March and her undoubted concerns for her safety, that this was a traumatising event, which finally led to her injury, cannot be doubted on the evidence. That situation resulted from the approach adopted at Putland to the management of the risk to which TAS Su was repeatedly exposed in the period of teaching. Again, that the approach which had been adopted was psychologically unsafe, was apparent. The particulars 714 I turn then to the particulars of this charge. a) There was an actual risk of the absence of or inadequate management support increasing the potential danger of an individual teacher's aide special ("TAS") developing occupational stress, namely, post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders. 715 I am satisfied on the evidence of both the events in question in the period of the charge and the expert evidence, to which I have referred, that this particular was established to the requisite degree. 716 Even on Professor's Tennant's approach, the conclusion that necessary management support was inadequate in this period to ensure that repeated exposure to behaviour which put staff at risk of psychological injury, did not materialise such injury, was unavoidable. He agreed in cross examination, that depending on the severity of the behaviour, belittling or bullying staff who sought to raise safety concerns in meetings, would make a workplace psychologically unsafe, particularly if that person was the sole person who was picked on in that way. The evidence here was that there was a particular group of employees, including TAS Mary and TAS Su, who had concerns about safety, which they sought to pursue with the Principal. They involved their union with their concern that the Principal was not adequately concerned with their safety. They themselves pursued safety issues, as did A/P Rebecca on their behalf. The Principal's response to what was being raised with her by TAS Mary and TAS Su was not adequate, so as to ensure safety. To the contrary, the way that they were treated exacerbated their situation. 717 For TAS Mary, the incidents on 10 and 15 March then arose. Given how TAS Mary was treated on 10 March and in subsequent days, when seeking to raise her safety concerns with the Principal, that the approach adopted was psychologically unsafe, was established. Dr Brown viewed the Principal's response as extraordinary. TAS Su had experienced similar treatment on earlier occasions and was present when TAS Mary was so treated. The events of 15 and 17 March, when TAS Mary and TAS Su each had to rely on a response to the duress alarm, occurred at a time where a serious failure of that system on 10 March, had not been investigated or addressed. Professor Tennant agreed that the system should have been tested and repaired in the shortest possible time. He said: The system will be fixed in the shortest possible time, yes. Whether or not it is before they return to work is an issue of assessing the whole safety issue with and without an active alarm system for one or two or three days. I don't know how long it takes to fix. And it would again depend on the composition of the class and the awareness of other people that the system is now down so extra caution is now required from all staff, particularly the Justice Department personnel in the courtyard, et cetera. I mean you have to judge the total situation not just the failed system although I agree with you that's got to be fixed with urgency. 718 The Principal was made aware of the DET system failures on 10 March. The DJJ was not. There was simply no response to the problem; no attempt to establish what had occurred, or to ensure that the failure did not occur again. When made aware of the problems, both Mr Muir and Jane M, took the view that the failures were serious. Undoubtedly, they were. 719 In addition to the matters earlier mentioned, reference should also be made to the failure to have in place policies to guide DET staff, in the event of an escape. The defendant had no such policy, even though other documents identified that staff were at particular risk of aggression from detainees, wishing to escape. The evidence was that there had been no training or drills conducted in how DET staff were to respond to such a situation, explaining, no doubt, why the Principal involved herself in the pursuit of the detainees, rather than remaining at the School. Again, despite her own response, the Principal's general attitude was that dealing with the detainees at that point, was a matter for the DJJ alone, not DET staff. 720 It was certainly the attitude of the DJJ, that the Principal had no role to play in any pursuit. That was a matter for police. There was no suggestion that the Principal, or any of the A/Ps who she left behind, had any training in, or understanding of, what they should do, in the event of an escape. The Principal presumed that the DJJ would simply take control. 721 The Principal's departure effectively left a relatively inexperienced Acting A/P in charge of the School. There was evidence that other Putland staff were concerned, including TAS Mary and TAS Su, that the Principal had left the School. On the evidence, she certainly did not explain why, or even announce, that she was leaving. The description of the situation was that once it was appreciated what was happening, DJJ staff responded to control detainees in the quad, who had become restless, in order to remove them to their units. They were assisted by Putland staff, but the Principal simply left, taking no steps at all to satisfy herself as to the safety of her own staff. 722 Even the defendant put to A/P Amanda in cross examination, however, that in the event of a critical incident 'It is the principal's role to make sure the staff are safe and all accounted for'. A/P Amanda agreed. 723 In that context, the Principal's description of how she dealt with the staff meeting, which she found underway, on her return to school and her insistence that what had occurred that day, was not a matter for the School staff to consider at all, even in the context of ensuring safety, only lent force to the conclusions I have reached for the reasons already explained, that the particular was established. The Principal repeatedly refused to deal with what had occurred on 10 March with TD that day, or in the days subsequently. She failed to provide a serious incident report in relation to the matter, despite her evidence in the proceedings that she had told teacher Ron that day that the matter was serious and that he had been assaulted. She gave entirely wrong advice to Ms Koussa as to her knowledge of these events, which can only have been designed to give a false picture as to her failure to deal with a serious breach of Putland's safety system. 724 The approach adopted was entirely inconsistent with various of the defendant's paper systems, as I have explained, even those designed to preclude staff from sustaining a psychological injury. Further incidents then unfolded in close proximity to that which occurred on 10 March. Given their already heightened anxiety, on the expert evidence, it is apparent that both TAS Mary and TAS Su were unable to cope with the risk to which they were further exposed. Injury resulted. There can be no doubt that the particular was established to the requisite degree. b) Aspects of the defendant's psychologically unsafe place of work were any of the following: i) Failure to provide social support on 10 March 2004 in the form of supportive management or leadership when the Principal left the unit to follow three escaping detainees and thereby left the employees of the unit without adequate support. 725 On the evidence, the Principal's pursuit of the detainees was inconsistent with policies which required such matters to be dealt with by DJJ staff and the police. Plainly given her evidence, the Principal sought to provide the DJJ with assistance, which she perceived she could provide. It was not sought by the DJJ, which disagreed with what she had done and took steps to ensure that she did not involve herself in such a way again. 726 When the Principal left, the school was left in charge of the A/Ps on duty. There was a relatively inexperienced A/P effectively left in charge that day. While not a desirable situation, that she and the other A/Ps remaining, were unable to provide support and leadership to staff, in the events that unfolded that day, was not established. The Principal's role was ordinarily undertaken by such A/Ps, whenever she was absent. Ordinarily A/Ps were not left to deal with serious situations such as this, but there was no evidence from which it could be concluded that those left in charge of the School that day, left other employees such as TAS Mary and TAS Su without adequate support. 727 That this situation might, nevertheless, have confirmed staff concerns about the Principal's attitude to their safety, is a different matter. Certainly the evidence of TAS Mary and TAS Su was that at the time, they could not understand why she left. They observed her doing so, with disbelief. That does not seem a surprising reaction, given the Principal's general approach, that safety was a matter for the DJJ, not the DET to ensure. Her approach on her return to School and the way in which she rebuffed attempts to raise safety issues that day and in the days following, is another matter, dealt with by other particulars. 728 I am not satisfied, however, that the Principal's departure, of itself, made Putland psychologically unsafe, was established, to the requisite degree. ii) Failure to provide social support in the form of adequate consultation when the Principal did not make herself aware of the incident on 10 March 2004 in which class teacher Ron and TAS Mary were subject to abuse in the class room and there was not an adequate response to an emergency summonsing for help. 729 This particular was established. TD's serious threats and assaults that day in class were established, as was the sounding of duress alarms, which were not responded to. All that I have earlier said about this situation is relevant to this particular. 730 The information provided by the Principal to Ms Koussa was that she was not aware, even by the time of that investigation, what had occurred in the class on 10 March, was plainly wrong, given her evidence in these proceedings. That information was always available to her, being contained in the reports provided immediately after the incident, by TAS Mary, teacher Ron and the A/P. She also spoke to each of them that day. 731 In her evidence in chief, the Principal said that on 10 March, she had a conversation with teacher Ron, after her return from the pursuit of the detainees, in which he told her of TD snatching a piece of paper from him, insulting him and pushing a table into his stomach. She advised him that this constituted assault, was a chargeable offence and should be dealt with in a level 2 misbehaviour report. It was, but no charges were laid and the matter was never dealt with, or even investigated by the defendant. 732 The Principal's opinion was consistent with that of Jane M, who also regarded the situation to be a serious one. 733 In the light of that evidence, the Principal's failure to act on the available reports; to prepare a serious incident report; to respond to the concerns TAS Mary sought to raise with her the same day, about the failure of the duress alarm system; the failure to ever investigate what occurred in class that day; and what the Principal later told Ms Koussa, when she professed to be unaware of the relevant events on 10 March, was difficult to understand. It certainly revealed a significant and inexplicable failure to deal with the serious situation known to the defendant to have occurred in the class on 10 March, or to provide adequate support to the affected staff. On the evidence, that included TAS Su. There had been concerns about safety at Putland and the Principal's attitude to such concerns for some time. The Principal required TAS Mary and TAS Su to return to class, with a known failure of the safety system unresolved. Given Professor Tennant and Dr Brown's evidence, there can be no doubt that this approach could not ensure safety. 734 The Principal was present in Court while much of the prosecution evidence was called, including that of A/P Rebecca. In cross examination, the Principal explained that by her comment to A/P Rebecca, when she sought to raise these safety issues with her that 'Heaven help us when something serious so happens', she was referring to the Yasmar incident, where a fatal stabbing had occurred at another juvenile detention centre school. The idea that this was the level of seriousness required, before staff safety concerns about serious incidents which occurred at Putland were addressed by the Principal, even when raised with her by an A/P, in accordance with the practical system which the defendant operated at Putland, which required staff to raise their concerns with their A/P, who would raise them with the Principal, also confirms the conclusion that this particular was established. iii) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary brought to the attention of the Principal, after the Principal returned from chasing the escaped detainees, that during the 10 March 2004 class room incident an urgent request for help went unanswered. 735 This particular largely repeats particular (ii). For the same reasons, I am satisfied that it was established. It was TAS Mary's evidence that she repeatedly tried to raise this with the Principal, who refused to redress what was, on any view, a serious matter requiring attention. Given the Principal's evidence as to the conversation which she had that day with teacher Ron, this attitude is inexplicable. It was not evidence put to Professor Tennant in the assumptions put to him by the defendant, undoubtedly, given the way in which this evidence came to light. In that context, it can only be concluded that even on his approach, the Principal failed to provide the necessary support to TAS Mary, if her safety was to be ensured. iv) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary on 10 March 2004 at an impromptu staff meeting attempted to discuss safety issues with the Principal. 736 This particular was also established, for the reasons already explained. The Principal required the discussion underway when she returned to find this meeting in progress, to cease and refused to permit discussion of the matter when staff sought to pursue it with her subsequently. She took no steps at all to deal with the matter. Given the system in place, there was, in reality, no other practical way in which this situation could be dealt with by staff, such as TAS Mary, other than perhaps a union notifying a dispute, or a complaint being made to the District Office. The defendant's systems were designed to ensure that its obligation to be proactive to deal with problems of this kind, were met. On any view, this approach failed to provide the necessary support to TAS Mary, if her safety was to be ensured, given the risk to safety to which she had been exposed. 737 The next particular provided: v) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when TAS Mary attempted to raise and discuss matters with the Principal at the next weekly staff meeting after the 10 March 2004 class room incident and escape incident. 738 This particular was also established, as I have explained to the requisite degree, even on the Principal's evidence. There can be no doubt that her attitude failed to ensure TAS Mary's safety, given the risk to which she had been exposed. The defendant's policies envisaged such support would be provided as a means of controlling this risk. It was not. vi) Failure to provide social support in the form of adequate consultation and/or supportive management or leadership when the Principal never sought the views of TAS Su about the bomb scare, class room fight and escape on or after 17 March 2004. 739 The evidence was that there was an evacuation of the School on 5 March, when a bomb scare occurred. This was outside the period of the charge, but relevant to TAS Su's response to the events in the period of the charge. There was a conflict in the evidence as to what staff were told about the need for the evacuation and when they were told to return to Putland. 740 That TAS Su was concerned by the fact that there had been a bomb scare, shortly before the escape on 10 March, cannot be doubted. TAS Su's evidence in relation to what occurred in relation to the bomb scare, departed, however, from that of other witnesses, including that of TAS Mary and various A/Ps. On all of the evidence, I am unable to conclude that the way in which this situation was dealt with by the Principal, can have been a matter which, on any view, was one likely to have given rise to the risk of psychological injury for TAS Su. She was certainly dissatisfied with the Principal's communication with staff in relation to that situation, but her view was not one which most other witnesses shared. 741 The same cannot be said in relation to TAS Su's reaction to the other events in which she was involved. After 10 March, she was present at meetings when TAS Mary and teacher Ron unsuccessfully tried to pursue their concerns about the failure of the duress alarm system, in the context of TD's behaviour on 10 March. She had herself been involved in what had there occurred. Unsurprisingly, she was concerned about the Principal's response, which was consistent with how concerns she had herself raised about safety issues, had earlier been dealt with by the Principal. 742 While the defendant submitted that these concerns were merely an indication of 'vocational dissatisfaction', it is not possible so to dismiss TAS Su's evidence, that she had also sought to raise her safety concerns, only to have them dismissed out of hand. The Principal agreed, for example, that when TAS Su sought to raise concerns about the composition of detainees in a class, for example, her general response was that evidence had to be provided, going to points, misbehaviour reports and so on; so that if a problem was identified, then steps could later be taken to deal with it. A/P Rebecca then endeavoured to pursue that course on TAS Su's behalf, but could get no resolution in her discussions with the Principal. 743 On the evidence, the difficulty plainly was for a TAS like TAS Su, who raised her concerns at the daily DAP meeting, the time at which decisions about access to class had to be made on the information then to hand, that the approach of deflecting consideration of safety concerns raised by such staff to a later time, with written evidence of the basis for such a concern being required to be provided, was that detainees were given access to class in the meantime, on the basis that existing controls were adequate to ensure staff safety. That did not always prove to be the case, as the evidence in these proceedings so amply revealed - those controls were not able to identify all of those detainees prepared to engage in behaviour in class which could put staff safety at risk, so that they could be excluded. That was the situation with BH on 15 March, whose behaviour was so out of control that he was able to assault both teacher Ron and DJJ staff, called in to remove him. TAS Su, along with other DET staff, observing the difficulties created by BH resisting control in the quad, was on any view, confronted with a very serious situation resulting in BH's transfer from Cobham. I am unable to agree with Professor Tennant's perception that this was but a trivial stressor, even for TAS Su, given her already existing serious concerns about her safety. This was plainly one of a series of incidents, in close proximity, albeit of a lower level of impact for her than TAS Mary, but which contributed to her heightened state of anxiety which finally resulted in an injury, after the incident on 17 March. 744 On the Principal's own evidence, TAS Su was dedicated to her work. She plainly was not a malingerer, nor taking sick leave at this time, even despite her growing fears about her safety and increasing inability to cope with the risks to which she felt that she was being exposed by the defendant at Putland. 745 Along with other staff, TAS Su observed and was understandably concerned by BH's behaviour on 15 March, again bringing home to her the level of risk to which she was being exposed in her work at Putland, at a time when the Principal had repeatedly refused to investigate or even discuss the failure of the system on 10 March. TAS Su had been involved in an incident in class in 2003, the first time that she had observed a violent altercation in a classroom, which she described as a 'blood bath'. The next occasion was 15 March 2004, when she directly observed such a situation, but like other staff, she was present at DAP meetings, when detainee behavioural problems were discussed in the meantime. She was also involved in the other safety issues which had arisen during the building programme. While not directly involved in the way TAS Mary was that day, that TAS Su was adversely affected by what occurred on 15 March, cannot be doubted. On the evidence this was an extreme situation even by Putland standards and can only have reinforced to TAS Su, the serious risks to which she was being exposed in her daily work at Putland. These events led to TAS Mary's injuries, as well as those suffered by teacher Ron. Their seriousness cannot be doubted. 746 On 17 March, again, violence erupted in the classroom in which TAS Su was teaching. A/P Rebecca's evidence was that this was not a major incident by Putland standards. Until that day, on her evidence, TAS Su had not herself needed to use a duress alarm to call for assistance in class, since the preceding year, the teachers had always radioed for assistance. Her reaction that day, occurred shortly after 10 March, when there had been a failure of the duress alarm system which the Principal had repeatedly refused to discuss or investigate. Then TAS Su had cause herself to call for such assistance. Her reaction and consequential sick leave, no doubt, formed part of what led the Principal to the view, which she explained to Ms Koussa that she had formed of TAS Su and her inability to cope any longer at Putland. Her view was that TAS Su had an 'underlying problem' in 'working with our sort of kids'. She had not understood the risks of working at Putland on an emotional level, until directly involved in an incident. She had indicated to students that she did not trust them and that she had raised concerns about feeling unsafe, as 'a number of people [staff] do'. She had earlier spoken out at meetings where safety procedures were raised. The Principal was aware that there had earlier been odd occasions when she had been teary and felt she was not coping, before she left work. 747 Given the DET's policies in relation to detecting and preventing the risk of psychological injury materialising, it appears that the Principal identified that TAS Su was at risk of psychological injury, but failed to act. Plainly she ought to have done so. The view that TAS Su was not coping at work, led to no action of any kind, to deal with that situation, or to prevent any potential injury from manifesting. 748 While TAS Su had a good relationship with her supervisor A/P Rebecca, she did not seek out her assistance in March 2004 when she found herself increasingly distressed, to the point of vomiting on her way to work. Nevertheless, A/P Rebecca had also earlier observed that TAS Su was not herself and had become withdrawn. Like the Principal, that observation led to no action being taken, despite the applicable policies, which ought to have led to some active assistance being provided, for example, by the School counsellor to whom TAS Su could have been referred, or the EAP. The policies were simply not in operation at Putland. All of the defendant's systems failed to produce any steps to assist TAS Su, or to prevent her injury. 749 I am unable to accept the defendant's argument that A/P Rebecca's later report to Ms Koussa, as to what she had observed in relation to TAS Su, would be discounted, given that it was given some four weeks after TAS Su's injury. A/P Rebecca's report was consistent with her evidence in these proceedings and with the Principal's report to Ms Koussa, which was to similar effect. They both detected that something was amiss with TAS Su, but did nothing to deal with that situation. 750 The steps finally taken after the incident on 17 March, did lead to TAS Su receiving medical attention. By that stage, the injury had been sustained. Had proactive management and social support been provided earlier, the injury may have been avoided. That was the crux of Ms Knox Haly's evidence. The absence of such support increased TAS Su's vulnerability to the risk of injury. 751 The defendant's submission that the evidence was that TAS Su had formed the view, over a period of a week, that she would not be given a receptive hearing, by the Principal, cannot be accepted. That was a view which TAS Su had held for some time. It was the events which unfolded themselves over this period, given her existing concerns, and the defendant's failure to take available steps to deal with them, so far as TAS Su was concerned, which led to the injury materialising as it did. The submission that any failure on the Principal's part was immaterial, because the necessary support was provided by other supervisors, cannot be accepted on the evidence. Such support was simply not provided, despite the good rapport which existed between TAS Su and other supervisors. Even though A/P Rebecca detected that something was wrong, nothing was done to investigate or deal with that recognised situation. The Principal's approach, when she was directly involved and in a position to deal the situation where she plainly recognised that TAS Su was not coping, also led to no assistance being given to her. 752 The defendant's submission that Ms Knox Haly's conclusion that TAS Mary and TAS Su worked in an environment with complex, often dangerous young males, a situation where staff were frequently exposed to critical incidents and there was a very real danger of assault 'flies in the face of the actual evidence relating to the experiences of' TAS Su', also cannot be accepted. That is precisely what the evidence disclosed. Even when not directly exposed to such situations herself, TAS Su, along with other DET staff, including TAS Mary, attended morning briefings where staff were routinely provided with such information, which they then had to take into account, in their ongoing dealings with detainees who they were constantly warned about, as posing a serious risk to their safety, as they plainly did. TAS Su was routinely informed about incidents at Putland and Cobham; she directly observed what occurred with BH on 15 March and was the one who heard the duress alarm on 10 March, which was not answered. That problem was never dealt with. Again, it must follow undoubtedly, that this particular was established. vii) Failure to have in place an occupational health and safety committee established by the employer and Departmental employees for the place of work. 753 The evidence was that staff had sought the establishment of such a Committee. The Principal had resisted its establishment. Such a Committee was established, after March 2004. Putland staff had a concern that the overall Cobham Safety Committee, did not pay sufficient attention to Putland concerns. Given the evidence of the audit of the work of that Committee, its rating and the Committee's ongoing difficulties in coming to grips with the question of risk assessment of individual detainees given access to Putland classes, that concern was understandable. 754 On the evidence of Jane M, the Committee was not concerned with matters of risk assessment in relation to detainees, but rather with: ... the built environment and the equipment used for programs and obvious hazards within the workplace. It didn't get into behaviour management or discussing individual detainees because the forum for that was that we've just talked about, the CSM, and there were other forums to discuss detainees' behaviour such as the morning briefing. So the OH & S members were skilled in looking individually at clients and the risks they posed so we concentrated more on having a strategic approach to the safety of the built environment within the Detention Centre. 755 This evidence corroborated that Putland staff did have a basis for their ongoing concern about the existing Committee. 756 There was no evidence that the existing Committee directed its attention in any meaningful or effective way to preventing psychological injuries, at Putland, despite the obvious risk to which employees were there exposed. Serious incidents which occurred at Putland were never referred to the Committee for its consideration or attention. This altered after March 2004. 757 The evidence was that the various DET policies directed to detecting and preventing those at risk of psychological injury from suffering such injuries, were not operating effectively at Putland. The Principal and supervisory staff had not been trained in how to apply such policies. Had the Safety Committee turned its attention to the risks which detainees posed for staff safety, the problems with the failure to operate such paper safety policies might have been detected, necessary training given and the policies implemented. The evidence showed that the necessary effort to ensure the safety of Putland staff, from the risks detainees posed, was not being made by the Committee which was operating. 758 The defendant argued that this allegation concerned an issue legitimately raising an industrial dispute, but could not be causatively connected with the risk of injury. This was because the obligation imposed by s 17 of the OHS Act to have a safety committee was satisfied. There was no obligation to have more than one committee, even if a majority of employees had requested one. The DET policy was for only one committee at each site, to avoid duplication of effort and inconsistency in decisions. Those arguments, undoubtedly, have some foundation. 759 On the evidence, I am unable to conclude, as the prosecutor argued, that the necessary causal connection between what this particular actually alleges and the risk here in question materialising, was established. Not even Ms Knox Haly's evidence provided support for that conclusion. While it was ineffective, so far as detainee risk assessment was concerned, there was a committee established and operating. It was seeking to address the question of individual detainee risk assessment. These endeavours were not effective in ensuring safety. It was the failure of the existing Committee's efforts in that respect, not the absence of another committee entirely, which contributed to the safety risks materialising. It follows that it may not be concluded that this particular was established. c) The psychological injuries to TAS Mary and TAS Su were a manifestation of the risk. 760 For reasons which I have explained, there can be no doubt that TAS Mary and TAS Su each suffered a psychological injury, as the result of their experiences at work at the relevant time. Their claims were investigated and liability for their injuries was accepted by the defendant, for workers compensation purposes, indeed, it never disputed its liability, given what Ms Koussa's investigation revealed. Even though Ms Koussa concluded that TAS Su's response to the 17 March incident was disproportionate to the incident, in her view TAS Su might have been sensitised to potential distress on account of prior incidents and through her personal concerns with safety. The defendant's submission that there had not been such other prior incidents, cannot be accepted, on the evidence. 761 TAS Mary had been involved in a number of incidents in the two and a half years that A/P Rebecca had worked at the school. A/P Rebecca told Ms Koussa that these included a student assault in a class TAS Mary was working in, in 2003; one where she had sought help from the Principal with a detainee who had thrown chairs at a window in class, but the Principal told her that she was too busy to assist; and the incident where she had called for assistance on 10 March, when accosted by TD, when none came. A/P Rebecca reported that the escape that day had not been acknowledged as serious by the Principal, who stated 'heaven help us when something serious happens'. As to the 10 and 15 March incidents in which TAS Mary had been involved, it was A/P Rebecca's view that they were 'extreme'. 762 Like TAS Mary, TAS Su had also been involved in other incidents before 17 March, in addition to observing what occurred with BH in the quad on 15 March. She had been involved in what occurred on 10 March with TD when the defendant's safety system failed to ensure that assistance was given to TAS Mary and teacher Ron. In 2003, there had been a serious assault of one detainee by another, in a class in which TAS Su was teaching, and earlier in March there had been a bomb scare. 763 As I noted earlier, the OHS Act does not envisage that an offence is committed only when an employer is aware that a particular employee is no longer coping with exposure to repeated acts of violence at work and thus has become at particular risk of psychological injury. There was, for example, no onus on TAS Su to bring her situation to the attention of the defendant. Indeed, the defendant's own policies recognised that staff themselves might not be conscious that they were being injured. 764 On TAS Su's evidence, for her that realisation did not come until some time after 17 March, when she came to recognise that vomiting on the way to work and feeling scared when she arrived at work, concerned as to what detainees she would have to work with that day, and what incidents would occur, were symptoms of an illness which she was developing. She described these feelings having arisen during the building programme at Putland and while she had raised her safety concerns about the size of the classes then being taught and other matters, she did not complain to her A/P that she was becoming ill, because she did not know this herself. This evidence cannot be discounted, as the defendant submitted, merely as evidence of stress felt by TAS Su, in relation to an industrial issue over class size. 765 It was also argued for the defendant that the evidence showed that TAS Su did not feel inhibited about raising issues with the Principal and that her perception that she did not obtain the response which she sought, was but a clear example of vocational discontent, as opposed to occupational stress. On the evidence, I am unable to accept that submission. The one employee can obviously have both responses, to a situation where their safety is being put at risk. As a matter of logic, if nothing more, the two responses - vocational discontent and injury are not mutually exclusive. 766 That it might be difficult for an employer to predict at what point a particular employee will be injured and by what particular, unknown event, is not to the point. On the evidence, this defendant was unable to prevent its employees repeatedly being exposed to violence and threats of violence at Putland. Such exposure was known to give rise to a risk that its employees could suffer a psychological injury, as a result. The OHS Act thus required that the defendant take the steps necessary and available to ensure that no such injury occurred. If the risk could not be excluded; it had to be controlled, at least. Under the applicable policies, repeated concerns being raised by staff as to their safety, including by TAS Su and TAS Mary, in this environment, ought to have been recognised and dealt with at Putland as clear warning signs of the risk of injury materialising. They were not. 767 It follows that it must be concluded that this particular was established. That was the view of Ms Koussa, Ms Knox Haly and various medical experts. Experts called by the defendant disagreed with Ms Knox Haly's conclusions, in the reports which they provided. In cross examination, however, it became apparent that the instructions they had been given by the defendant as to the facts, departed in significant respects from the evidence in these proceedings, as to what had, in fact, occurred. I have already dealt with this. 768 In the result, in cross examination it was conceded, for example, by Professor Tennant, that the Principal's approach to the safety issues brought to her attention by A/Ps such as A/P Rebecca, was unhelpful. That no action was taken to deal with these issues was also unsatisfactory, as was the Principal's refusal to give TAS Mary any answer to the serious safety concerns which she sought to raise with her. While Professor Tennant insisted that this was not unsafe, merely poor communication, that was not Dr Brown's view and is a view which I cannot accept on the evidence. Professor Tennant accepted that it was unsafe not to implement safety procedures and to fix the duress alarm system. I am satisfied that the failure to implement available controls, which would have prevented psychological injury from materialising, despite the repeated acts of violence and threats of violence to which staff were exposed to, can leave open no conclusion other than that the psychological injuries sustained by TAS Mary and TAS Su resulted from what they were exposed to at this workplace. There can be no doubt that those injuries materialised as the direct consequences of the defendant's acts and omissions. The proper construction of s 28(a) of the OHS Act, the defence on which the defendant relied in each case, particularly in relation to the concept of reasonable foreseeability. 769 The s 28(a) defence is concerned with what is reasonably practicable. It has been accepted that if the happening of an event is not reasonably foreseeable, it is not 'reasonably practicable', for the employer to make provision against it. In considering such issues, however, care must be taken not to substitute reasonable hindsight, for reasonable foresight. (See WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381.) 770 The standard of foreseeability is objective, but it is not necessary to show that a reasonable man placed in the defendant's position would have foreseen as a possibility, the particular chain of cause and effect involved. (See Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 364.) Nor is it a question of whether an employer was aware of a particular risk, but rather whether it should have been. (See Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at [76].) 771 In the case of a known risk, an employer must demonstrate that the balance of the nature, likelihood and gravity of the risk in question outweighed the costs, difficulty or trouble of the measures necessary to avert the risk. In the case of a risk giving rise to a potential for serious injury, the costs, difficulty or trouble of the necessary measures must be shown to significantly outweigh the risks. (See WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447 at [38].) 772 In some cases it has been accepted that it was not practicable for an employer to guard against an appropriately trained and instructed employee departing from a known safety procedure. (See Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [67].) The unforeseen behaviour of a disobedient employee may also lead to the happening of an event, which could not be reasonably foreseen and which was not reasonably practicable to guard against. (See Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 at [121].) The defendant did not, however, advance arguments of this kind in its case. How does the statutory defence operate, especially in the context of a charge relating to a psychological injury? 773 The defendant here argued that in order to understand the scope of the concept of 'reasonable foreseeability', arising in the context of the s 28(a) defence, that it was not reasonably practicable to comply with the obligation imposed by s 8(1) to ensure safety in a case of psychological injury, 'one perforce is required to consider what the common law has said that expression means, particularly in the light of common law claims arising out of negligent conduct which caused a known psychiatric illness or injury.' 774 To advance this argument it was submitted that it was not possible that the reach of the occupational health and safety legislation in New South Wales is such that every workplace where there is a person who might be at risk, or is at risk, of suffering occupational stress, meant that the OHS Act was being breached by the employer. The risk of psychiatric injury had to be put in its proper place, in order to strike a balance between the prosecutor, defendants and the public interest. It followed that a 'control mechanism' in relation to 'reasonable foreseeability' in the case of psychiatric injuries, as applied in common law cases, must be accepted by the Court, in determining whether a s 28(1) defence had been made out in the circumstances in question. 775 To make good that submission the defendant undertook an extensive review of the authorities dealing with reasonable foreseeability of psychiatric injury in common law cases, submitting that the principles there developed, should be applied in this statutory context. 776 What those 'principles' were said to be, was not entirely clear, but extensive reference was made to the authorities dealing with the idea of 'normal fortitude'. For example, in Tame v New South Wales (2002) 211 CLR 317, the idea of "normal fortitude", was described by Gummow and Kirby JJ as 'not a free-standing criterion of liability, but a postulate which assists in the assessment, at the stage of breach, of the reasonable foreseeability of the risk of psychiatric harm' (at [189]). Their Honours Gummow and Kirby JJ went on to say at [201]: However, the concept of "normal fortitude" should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful. It may be that, in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of "normal fortitude" is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk, in the manner indicated in Wyong Shire Council v Shirt . Where the plaintiff's response to the defendant's conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it. Thus, as Pound observed in 1915, where a putative tortfeasor "so far as he could reasonably foresee, does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way." 777 Callinan J said at [334]: "Nervous shock cases, as with economic torts, do stand in a separate category from cases of torts involving physical injury. They have stood apart for a long time. Courts should be slow to do what legislators have abstained from doing. Nervous shock and its psychiatric consequences stand apart from physical injury because, although susceptibility to psychiatric injury may vary from person to person, everyone knows, and can foresee, that physical trauma will inevitably cause physical injury. Everyone is susceptible to all forms of physical injury, although the impact of its consequences may vary from person to person. On the other hand, not everyone would react and suffer psychiatrically as this appellant did." 778 The prosecution disagreed with the defendant's approach to reasonable foreseeability, arguing that the common law authorities were not of assistance in the context of the s 28(a) defence and that even if they were, they did not assist the defendant in this case. 779 Reference was made to the approach of the Full Bench in St Hilliers Contracting at [32], discussed again by the President Boland J, in Cahill v State of New South Wales (Department of Community Services) (No 3) at [366] - [367], where his Honour emphasised the importance of proper identification of the risk in question, when the statutory defence was being considered. There, his Honour referred to both the defendant's paper systems, which identified the risk in question, as well as evidentiary matters, which indicated the existence of the risk, in the particular circumstances under consideration. 780 Even if reasonable foreseeability was to be approached in the way argued for the defendant, it was submitted by the prosecutor to be but one of the factors that had to be weighed in the balance required by s 28(a). The defendant had the obligation to make out the other factors required to be weighed, in determining whether that balance had been established, in its favour, to the civil standard. It was argued that here, the defendant had failed to meet the evidentiary onus which fell upon it, to establish those matters. 781 Both parties referred to what was observed in State of New South Wales v Mannall (2005) NSWCA 367 at [113] - [116]: B) Foreseeability issues (grounds 2, 3 and 4) 113 Grounds 2, 3 and 4 contend that the judge erred in concluding that the employer ought reasonably to have foreseen that a possible consequence of its conduct was that the respondent would suffer a recognised psychiatric illness. The precise role of the foreseeability issue was at times confused given that the legal duty of care invoked in the present case is not itself in dispute (see generally New South Wales v Seedsman [2000] NSWCA 119, 217 ALR 583, Koehler v Cerebos (Aust) Ltd [2005] HCA 15, 214 ALR 355). 114 It is a question of fact, not expert evidence, whether a defendant ought to have reasonably foreseen that his or her conduct might cause a person of normal fortitude to suffer psychiatric injury ( Tame v New South Wales (2002) 211 CLR 317 at 358[115], 386[203], 437[360]). Here there was a finding in the present case that Mr Singh was actually aware of the risk. 115 The appellant cites O'Leary v Oolong Aboriginal Corp Inc [2004] NSWCA 7, Aust Torts Reports §81-747, with particular reference to the distinction drawn by the Chief Justice (at [15]) between stress and a recognised psychiatric illness. It is submitted that this distinction was overlooked by the trial judge and that the most that Mr Singh should have foreseen was that the respondent was being subjected to stress which is an inevitable concomitant of everyday life, particularly the life of a work supervisor. This submission must be rejected in light of the findings about the matters of which Mr Singh was on actual notice. 116 There were times when the respondent kept up a reasonable façade at work as she struggled to cope. It is also true that Mr Singh's capacity to detect stressors likely to result in psychiatric injury is not to be measured as if he were a medical specialist. But Singh was a manager who knew from June 1995 onwards that the respondent needed and was entitled to expect his assistance and cooperation. His evidence to the effect that he did not observe the respondent's deterioration in the latter months of 1995 was rejected. Instead, there were the positive findings summarised above. There was plenty of evidence that the respondent was not giving the appearance of coping with the situation at the critical time (see respondent's submissions at 25.2.2 782 Reference was also made to New South Wales v Fahy (2007) 232 CLR 486, where it was observed by Gummow and Hayne JJ for example, at [60]: "There can be no doubt that performing the duties of a police officer can often be very psychologically stressful. That is the inevitable consequence of the kinds of work police officers are required to perform. That a police officer may suffer psychiatric injury as a result of performing that work is, therefore, readily foreseeable. The risk of such injury is not far-fetched or fanciful; the risk of injury may not even be remote (if, 'remote' is understood as meaning extremely unlikely to occur). 783 Likewise, in this case, there can be no question that performing the duties of a TAS at Putland can be psychologically stressful. The defendant's systems and policies put this beyond doubt. That a TAS might suffer psychological injury as the result of their work was foreseen. It was not far fetched, fanciful, or remote. 784 The various opinions of those who gave evidence as to the foreseeability of TAS Mary and TAS Su suffering a psychological injury as the result of what they were exposed to at work in the period of the charges, must be assessed, of course, in the light of what the evidence as to the events in question has revealed. As the Chief Justice observed in Fahy at [5]: In Barber v Somerset County Council [[2004] UKHL 13; [2004] 1 WLR 1089; [2004] 2 All ER 385. 4], the House of Lords dealt with the case of a schoolteacher who suffered psychiatric injury caused by work-related stress. Applying as a standard of negligence "the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know" [[2004] UKHL 13; [2004] 1 WLR 1089 at 1110 [65]; [2004] UKHL 13; [2004] 2 All ER 385 at 406, applying Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783.], the House of Lords disagreed with the Court of Appeal's decision that negligence had not been shown. However, Hale LJ in the Court of Appeal had formulated some practical propositions applicable to cases where complaint is made of psychiatric illness brought about by stress at work, and these were accepted in the House of Lords [[2004] UKHL 13; [2004] 1 WLR 1089 at 1092-1093 [7], [10], 1109 [63]; [2004] UKHL 13; [2004] 2 All ER 385 at 389-390, 405.]. On the question whether psychiatric harm to the particular employee was reasonably foreseeable, they included the proposition that "there are no occupations which should be regarded as intrinsically dangerous to mental health"[[2004] UKHL 13; [2004] 1 WLR 1089 at 1092 [7]; [2004] UKHL 13; [2004] 2 All ER 385 at 389.]. Another way of expressing a similar idea may be to say that the factors that may cause stress, and the circumstances in which an individual might suffer stress-related injury, are so various that to single out any occupation and treat it as intrinsically dangerous in this respect is unwarranted. There are circumstances, for example, in which caring for children might be at least as stressful as law enforcement. 785 It must also be remembered that these proceedings are not concerned with common law duties or obligations, but with a statute which imposes an absolute duty on the defendant to ensure the health, safety and welfare of its employees at work at Putland, subject to the defences provided by s 28(a): It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or 786 It is clear on its face that s 28(a) itself draws no distinction between risks of physical, as opposed to psychological injury. A particular risk, may give rise to both types of injury, if the risk manifests. The s 28 defences are, however, undoubtedly an important aspect of this statutory scheme, introducing as they do, the concept of reasonable practicability and thereby, the question of reasonable foreseeability. In the particular circumstances of the offences here in question then, can it be concluded that it was not reasonably practicable for the defendant to have met its statutory obligation, in the circumstances in which TAS Mary and TAS Su were put at risk in March 2004? 787 Logically, it must be accepted, it seems to me, that there are situations where it may be less practicable for an employer to preclude a psychological injury when a risk manifests, as opposed to a physical injury, because the happening of the latter can more readily be foreseen, than the former. That was certainly the thrust of much of the expert evidence. The question which must be answered, however, whenever a s 28(a) defence is raised, is not whether a particular risk raised by a particular charge was actually foreseen, but whether it was reasonably foreseeable. 788 In this case, it seems to me, it may not be overlooked that there is no question that it was known to the defendant that its employees at Putland, including TAS Mary and TAS Su, were at risk of both physical and psychological injury, from exposure to the behaviour of the detainees with whom they worked in class. 789 That risk was known to exist because the detainees repeatedly engaged in acts of violence, threats of violence and other threatening behaviour towards other detainees, as well as to DJJ and DET staff. It was also known to the defendant that repeated exposure to such incidents, increased the risk of psychological injury being sustained and that with such repeated exposure, even a relatively minor incident, could be the 'straw which breaks the camel's back', resulting in a psychological injury being sustained. 790 The risk of psychological injury which flowed from exposure to such behaviour was described in various of the defendant's documents, which had been designed to ensure that the risk, which could not entirely be eliminated at Putland, was controlled, as s 8 of the OHS Act required of the defendant. 791 It was also known to the defendant that both TAS Mary and TAS Su had been exposed to such incidents, some of them more serious than others, over the course of their employment, prior to March 2004. It follows that there can be no question that it was reasonably foreseeable that they might suffer a psychological injury, if further exposed to such detainee behaviour. 792 When detainees would engage in such behaviour was unpredictable and could not be entirely excluded from manifesting, by any of the mechanisms or controls operated by the defendant. Given its other statutory obligations, the defendant could not entirely exclude detainees from class. The defendant's written policies and practical systems were therefore directed to controlling that general risk, whenever it manifested, given its assessment that every one of the detainees at Putland always posed a high risk to the safety of its staff, including those involved in the incidents which occurred on 10, 15 and 17 March. 793 The defendant's approach was, however, that it had established a defence in each case, because it had demonstrated that it was not reasonably foreseeable that TAS Mary and TAS Su would be injured, as they were. Neither of them had put the defendant on notice that they were no longer coping at work. It also relied on the view of Professor Tennant, for example, that it was not foreseeable that the relatively trivial events in which they were involved in March 2004, would result in the psychological injuries which they sustained. 794 There is real difficulty with the way in which the defendant advanced these arguments, given that the question of foreseeability is one of fact, which must be answered in the way discussed by McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [87]: In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary that the defendant should have foreseen the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen [ Thompson v Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 at 630 per Dixon CJ and Williams J; Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 at 222 per Dixon CJ, McTiernan, Kitto and Taylor JJ.]. If the authority should have foreseen the class of risk, a further question arises as to whether the risk could be reasonably disregarded [ Tame v New South Wales [2002] HCA 35; (2002) 76 ALJR 1348 at 1367 [108] per McHugh J; [2002] HCA 35; 191 ALR 449 at 475.]. Reasonable foreseeability involves more than a question of fact. It involves a value judgment. Would a reasonable person in the position of the defendant not only have foreseen that his or her conduct - including omissions - gave rise to a risk of injury, but regarded it as sufficiently serious to consider what steps should be taken to avoid or reduce it? 795 The onus fell on the defendant to make out the defences relied on, to the civil standard. Contrary to the defendant's submissions, there can be no question that each of these offences was concerned with known risks. 796 It was argued, nevertheless, that it was not possible that it was intended that the breach of the OHS Act was such that every workplace where there is a person who might be at risk, or is at risk, of suffering occupational stress, was one where an offence under the OHS Act had been committed. I accept that submission. However, the charges here before the Court are not concerned with the question of whether or not occupational stress was suffered at this workplace. The charges were each framed in different terms. 797 The defendant's policies and the evidence of its employees and those of the DJJ established that it had, in fact, foreseen that those it employed at Putland were at risk of psychological injury, because they were repeatedly exposed at work to violence and the threat of violence from detainees. The defendant had sought to implement practices designed to protect its employees from such risks materialising. It had also designed paper policies to protect its employees from such risks, which it could not entirely exclude, given the access to Putland which it was obliged to give detainees. 798 It was because repeated exposure to serious incidents happened at Putland, that other available controls envisaged by the defendant under its various paper systems, were important, they being designed to control the risk which it could not entirely exclude. The evidence showed that these paper systems were not put into operation. 799 It follows that the submission that it was not reasonably foreseeable that TAS Mary and TAS Su would suffer a psychological injury, if exposed at work to violence and the threat of violence, as they were, in March 2004, cannot be accepted. The evidence simply does not leave that conclusion available, even though the defendant could not foresee the particular way in which detainees would misbehave in the period of the charges. 800 The defendant also argued that the prosecution had to establish that a person of normal fortitude would suffer a psychological injury from exposure to the particular events which had caused TAS Mary and TAS Su, to be injured. 801 That submission has to be approached with some caution, it seems to me. On the evidence, unlike other employers, the defendant conducted no psychological screening to identify whether any of its employees were particularly vulnerable to the risk of injury from their repeated exposure to violent and threatening behaviour from detainees. Its policies and systems were thus designed to protect all of its employees, including TAS Mary and TAS Su, from sustaining a psychological injury, no matter what their particular vulnerability to such injury was, given that none of its practical systems were able to ensure that they were not repeatedly exposed to such behaviour. 802 Despite this, the paper systems designed to detect staff who were not coping, or were otherwise vulnerable to psychological injury and to protect them from such injury manifesting, were simply not in operation at Putland. It follows that any consideration of what persons of 'normal fortitude' might be able to tolerate, must have regard to this state of affairs. Was the defence established in the case of the 10 March charge? 803 That TAS Mary might be subjected to detainee behaviour which could cause her either physical or psychological injury in the course of her work at Putland, was thus not only reasonably foreseeable, it was actually foreseen in the defendant's written policies. That risk was recognised to exist for all of its employees at Putland. That the risk existed so far as TD was concerned, was also known, given that he was assessed by the defendant as giving rise to a high risk to staff safety and he had before 10 March, engaged in violent and threatening behaviour at Putland. 804 It was also known to the defendant that before March 2004, TAS Mary had been involved in other incidents with detainees at Putland, during which she had already been exposed to such risks. TAS Mary had suffered a slight physical injury, as a result, on one such occasion. In 2003, she had sought medical attention after one such serious incident, because she experienced difficulty in sleeping afterwards, although she did not make the defendant aware of this. Had the defendant's paper systems been in operation, the defendant ought to have been aware of this. It was not. Nevertheless, that it was actually known that TAS Mary was at risk of psychological injury in March 2004 cannot be doubted on the evidence. It was also known to the defendant that repeated exposure to such behaviour could result in an injury being sustained by further exposure, even from a relatively minor incident. 805 This charge is concerned with the further manifestation of that general risk on 10 March 2004, when TAS Mary was again exposed to the risk inherent in the behaviour TD engaged in that day, when the defendant's systems failed to prevent or control that risk, as they were designed to do. 806 I have found that there was no doubt that TAS Mary suffered a psychological injury as the result of the manifestation of the risk inherent in TD's behaviour on 10 March. TAS Mary's state after exposure to TD's behaviour on 10 March, pointed to an injury having been sustained that day. That she did not seek medical treatment until 15 March, when she was again subjected to such behaviour by BH, does not detract from that conclusion. 807 In so far as 'normal fortitude' is a matter which must be considered, an onus must fall on the defendant. It must establish, to the civil standard, that the detainee behaviour to which TAS Mary was exposed on 10 March, was behaviour which would not have given rise to any injury, in a person of normal fortitude. I am satisfied that the defendant did not establish this on the evidence, which it sought to meet through the expert evidence which it called. 808 The evidence showed that it was known to the defendant that employees who were repeatedly subjected to detainees engaging in violent and threatening behaviour, might sustain a psychological injury, when a particular incident, which of itself might not cause such an injury, became the 'straw that broke the camel's back', given earlier exposure to the risk. Its expert evidence confirmed this. The defendant could not entirely preclude that risk, given that it arose from the detainees attending Putland. Therefore its systems were designed to control the risk, however it manifested. On 10 March, those systems failed. 809 There can be no doubt on the evidence in this case, that any consideration of what a person of normal fortitude might tolerate at Putland, when working with detainees who attended the classes which the defendant conducts there, must be approached on the basis that the events of 10 March would not have been their only exposure to such behaviour. That was certainly TAS Mary's situation, one well known to the defendant and which its policies were designed to deal with. The evidence was that this problem of staff exposure to violence and threats of violence and other anti-social behaviour, despite the controls in place, was a frequent one at Putland. 810 I am satisfied that there was no evidence from which it could properly be concluded that a person of normal fortitude, having had experiences at Putland such as those of TAS Mary, who was then exposed to the events of 10 March involving TD, would not have been at risk of suffering an injury, as she suffered. 811 The incident was not by any means a trivial one, involving as it did entirely unexplained and serious failures of the safety system which necessitated TAS Mary and teacher Ron dealing alone with TD, a high risk detainee, who was threatening teacher Ron. TAS Mary interposed herself and dealt with him. This had to be done without the assistance which they should have received from DJJ staff, to ensure that they were kept safe. On any view, TD should not have been able to return to class unaccompanied once he had been removed from class. He should have remained under DJJ control, unless returned to class by an A/P. Having not been so controlled, DJJ assistance should have been provided when called for. It was not. The defendant failed to investigate what occurred and in these proceedings offered no explanation for the failure of its systems. 812 On that evidence the conclusions which the defendant urged are not available. 813 In coming to these conclusions, it also cannot be overlooked that on the last occasion TD returned to class, SS, another high risk detainee, was also standing at the doorway, preventing the staff's exit from the class. This should not have been possible at recess, when detainees were supposed to be supervised, so that staff could safely move from class to the admin area. 814 That a person of normal fortitude might be able to tolerate repeated exposure to violence and threatening behaviour from detainees, given the assistance which DJJ officers provided to Putland staff, was not established. To the contrary, the defendant's policies recognised that it could result in injury. That a person of normal fortitude might succumb to psychological injury, when called upon to deal with such repeated behaviour, unassisted, even when assistance was called for under the duress alarm system, is another matter entirely. There is no basis upon which it could be concluded that a person of normal fortitude would not have been at risk of psychological injury, in that situation. 815 The evidence from which it might be concluded that TAS Mary was, in any event, herself a person of normal fortitude, may also not be overlooked. When injured, she had worked at Putland without difficulty, for over 12 years. She was described in exemplary terms, by both the Principal and her supervising A/P. She had in the past been involved in serious incidents with which she had dealt without injury, apart from one incident where she required medical attention, when she had problems sleeping, but from which she recovered. On this occasion, another employee, teacher Ron, exposed to the same events, also suffered an injury. The likelihood that the two members of staff assigned by the defendant to work together in class on 10 March with TD, when the defendant's safety systems failed, were both not persons of normal fortitude, seems so unlikely as to make the conclusion which the defendant asks the Court to draw, a most unlikely one. 816 Finally, the expert evidence led by the defendant, which sought to demonstrate that normal fortitude would have precluded any injury resulting from these events, was premised on a factual basis provided by the defendant, which departed in various ways from the evidence as to what had, in fact, occurred on 10 March, as I have explained. This meant that in cross examination, when asked about the events as they have been found to have occurred, the experts made concessions which preclude a conclusion that it had been demonstrated that a person of normal fortitude, exposed to TD's behaviour on 10 March, would not have suffered any injury. 817 The prosecution did not have to show that the particular chain of events which gave rise to the risk of injury manifesting on 10 March for TAS Mary had been foreseen (see Comalco Aluminium Ltd.) Nor was it a question of the defendant showing that it had not foreseen the particular chain of events which occurred on 10 March. Even at common law, as the defendant itself submitted, the High Court held in Chapman v Hearse (1961) 106 CLR 112, as to the concept of reasonable foreseeability, at 120 - 121, that: One thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as a result of a sequence of events following a defendant's carelessness, it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that an injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. 818 It is in this context that another of the defendant's arguments that it was not reasonably practicable for it to have complied with its s 8 obligation, because TAS Mary did not put it on notice that she was not coping at work, must again be considered. That approach to the s 28(a) defence is not available. The obligation falls on the defendant to ensure safety in a proactive way. In the case of risk which can result in psychological injury, the obligation does not only arise when an employee puts an employer on notice that they are not coping. The question of foreseeability also does not depend on such notice being given. 819 On the evidence, the defendant was aware that its employees may not themselves be aware that they are sustaining a psychological injury. The employer's obligation is to do what is reasonably practicable for employees such as TAS Mary, by dealing with what is reasonably foreseeable as likely to give risk to a psychological injury, if not controlled. That is what the defendant here failed to do on 10 March. 820 In any event, as I have found, given the Principal's report to Ms Koussa, the defendant was on notice that TAS Mary was not coping at work. The problem was that the Principal failed to deal with what she had detected. 821 In this context, again, it is pertinent to refer to the defendant's failure to ensure that various of its paper policies, including its Occupational Stress Hazard Identification at Risk Management System, were operating at Putland. Neither the Principal nor other executive staff had been trained in what this policy envisaged would be done at Putland, to detect stressors and prevent psychological injury from manifesting. Nor had employees such as TAS Mary been trained in how herself to detect that she might be failing to cope, so that she was at increasing risk of psychological injury. 822 This omission put beyond doubt that the defendant had no basis upon which this defence could be established. There can be no question that it was practicable to have this and other relevant paper policies in operation. The same must be said about the defendant's Serious Incident policy. It obliged the defendant to have a Serious Incident Committee, which did not exist at Putland. The Principal failed to deal with the TD incident as this policy required, by making a serious incident report. Had the policy been in operation, what occurred on 10 March, would undoubtedly have been dealt with as TAS Mary repeatedly and unsuccessfully attempted to raise with the Principal. 823 It is strictly unnecessary to deal with this final aspect of the defence, given the other conclusions which I have reached, but for completeness, I observe that I am unable to conclude that the defendant demonstrated that the balance required by s 28(a) between the nature, likelihood and gravity of the risk here in question, outweighed the costs, difficulty or trouble of the measures necessary to avert the risk here in question. Perhaps because of the defendant's failure to ever investigate what had occurred on 10 March, the defendant did not really address questions such as these in its submissions. On the evidence, there was no explanation advanced for that failure of the defendant's systems and the failure to have relevant paper systems directed to preventing psychological injury, operating. Thus no basis upon which it could be concluded that the cost, difficulty or trouble of the measures necessary to avert the risk which manifested on 10 March, outweighed the nature, likelihood and gravity of that risk, was established in the defence case. Was the defence established in the case of the 15 March charge? 824 For similar reasons, I have concluded that the defendant did not make out a defence in relation to this charge. What occurred on 10 March and the concerns pursued by TAS Mary in relation to the failure of the safety system after that day must, on any view, have put the defendant on notice of the risk to which TAS Mary had been exposed; that she had been injured and that she was vulnerable to further injury. Yet no steps were taken to deal with that situation. That available steps were not taken cannot be doubted on the evidence, given the known risk which existed. 825 That the risk existed so far as BH was concerned, was also known. He too was assessed by the defendant as giving rise to a high risk to staff safety. Before 15 March, he had engaged in violent and threatening behaviour at Putland, indeed, he had done so over the preceding weekend. That he posed a risk to staff safety when he was admitted to class that day, was known. 826 The situation to which TAS Mary was exposed on 15 March was extraordinary from any point of view. The failure to implement the available paper safety systems designed to protect her from psychological injury, when BH again engaged in violent and threatening behaviour, puts beyond doubt that the defendant could not make out a defence. 827 The same conclusion must follow in the case of TAS Su. 828 Prior to 10 March, she was known to have serious concerns as to her safety. She, too, had been exposed to incidents of detainee misbehaviour at work. On 10 March, she was involved in the incident where no response was provided to the duress alarms sounded in relation to TD's behaviour. She was also aware of TAS Mary's failure to have that system failure addressed by the Principal in the ensuing days. There was no investigation into what had occurred and no steps taken to ensure that the failure did not recur. On 15 March, TAS Su observed what unfolded with BH in the quad, at a time when the problems with the duress alarm system had still not been addressed. 829 As at 15 March, it was known to the defendant that repeated exposure to incidents involving detainees put staff, including TAS Su, at risk of injury. The paper policies particularly designed to detect and prevent psychological injury from such exposure, from manifesting, were not in operation. Had they been, TAS Su could herself have been trained to identify that being so worried about her safety that she was vomiting on her way to work, meant that she was at risk of injury. It was known to the defendant that staff might themselves not be able to detect that they were sustaining such an injury. 830 Despite this both the Principal and her A/P had detected that TAS Su was not coping. Had the paper systems designed to prevent psychological injury been operating, steps would have been taken to deal with TAS Su's apparent vulnerability. They were not. In reality, the defendant took no steps to address the risk of injury to TAS Mary or TAS Su, despite the fact that they were not coping having been identified. 831 I have found that there was no doubt that what occurred on 15 March contributed to the psychological injury which TAS Su suffered. That she did not seek medical attention until after the events of 17 March, does not detract from that conclusion. 832 On the evidence, TAS Su had an unusually severe reaction to the series of incidents to which she was exposed in the period of the charges. TAS Su was certainly less exposed to risk on 15 March than was TAS Mary. I am unable to accept, nevertheless, that it was established that TAS Su was not a person of normal fortitude, given the evidence as to her work at Putland, over the course of her employment and what she was exposed to, without injury, before March 2004. That a person of normal fortitude would not have been injured at all, given what TAS Su had already been exposed to at Putland and what occurred on 15 March, so far as she was concerned, was not established on the evidence. 833 I do not accept the views expressed by some witnesses that what had occurred on 10 and 15 March, was trivial, even so far as TAS Su was concerned, for reasons which I have explained. In this respect, what may not be overlooked is the expert evidence that people who are repeatedly exposed to such incidents, may finally be injured, by what may seem to be a relatively minor incident, in the scheme of such incidents. It was Ms Koussa's view that, that was what happened to TAS Su. On the evidence I accept that there was a proper basis for that opinion. 834 In those circumstances, it may not be concluded that the defendant established the s 28(a) defence, in relation to either TAS Mary or TAS Su. 835 Nor did the defendant establish that the necessary balance of factors which would have averted the risk, outweighed the nature, likelihood or gravity of the risk. Given the failure to ensure that the paper systems designed to prevent psychological injury manifesting were in operation at Putland, there was no basis on which this could have been established. Was the defence established in the case of the 15 - 17 March charge? 836 For the same reasons, I am unable to conclude that the defendant made out a defence in relation to this charge. The failure to have its written safety policies addressed to averting the risk of psychological injury operating, put this conclusion beyond doubt, both in the case of TAS Mary and TAS Su. 837 I have dealt with TAS Mary's situation in the two earlier charges. This charge covers the same period and circumstances, so far as she was concerned. 838 In TAS Su's case, that what she was exposed to on 17 March finally resulted in the risk of a psychological injury materialising, cannot be doubted on the evidence. TAS Su had been involved in various incidents before March 2004, one very serious in 2003, which she described as a 'blood bath'. While not directly at risk of physical injury on 17 March, that what she was exposed to in class that day resulted in a psychological injury, was established. 839 Again, that TAS Su might be subjected to detainee behaviour which could cause her either physical or psychological injury in the course of her work at Putland, was not only reasonably foreseeable, it was actually foreseen in the defendant's written policies. The detainees involved in the incident on 17 March were also assessed by the defendant as posing high risk to staff safety, all detainees at Putland were assessed to pose such a risk. That they might engage in such an incident, so as to put the safety of TAS Su at risk, when she was called upon to work with them, was thereby also actually foreseen. 840 The Principal and her A/P had noticed that TAS Su was not coping and yet nothing was done to help her and to ensure that an injury did not result from further exposure to another incident of detainee violence, which manifested on 17 March in class, when she had to call for assistance using her duress alarm. 841 On the evidence, TAS Su had an extreme reaction to the risks to which she was exposed in this period - a series of incidents of low levels in themselves, so far as she was concerned, but in close proximity to each other. The extent of her injury, it seems to me, is irrelevant. Like other Putland staff, she was known to be at risk of psychological injury as the result of repeated exposure to the violent and threatening behaviour which the defendant could not prevent from breaking out in class, where she worked. It is the fact of the injury with which the charge and any defence is concerned, not its extent. 842 It was also known that with repeated incidents an incident even minor of itself, could finally result in a psychological injury. That was TAS Su's situation as Ms Koussa and her treating doctors concluded. The defendant's policies were designed to detect and deal with such a situation, so as to prevent an injury manifesting. They were not operating. Despite this, the Principal detected that TAS Su was not coping, yet took no steps to assist her. Plainly, those steps were available to be taken, the risk of injury having been identified. In the circumstances, that TAS Su suffered a more severe injury than others might have, from what she was exposed to, cannot be a basis upon which any defence could be established. 843 Again, the defendant also did not establish that the necessary balance of facts which would have averted the risk, outweighed the nature, likelihood or gravity of the risk. It follows that it must be concluded that no defence was established as to this charge. Conclusion 844 For the reasons given, I find that the offences charged have been proven. The matters will now be programmed for sentencing. ------------------------ Table of Contents The charges brought 3 The legislative scheme 7 Admissions 8 The issues 9 The evidence 11 What was Putland and how was it operated? 12 What systems had the defendant established at Putland to ensure safety? 14 What were the defendant's safety systems directed at? 15 The practical systems in operation at Putland 17 Duress alarms and radios 17 Assistance from DJJ staff and A/Ps 18 Morning briefings 19 Breaks 20 The points system 21 Information provided to staff, including the alert system 22 Exclusion of detainees from class 23 The A/P supervision system 23 The OHS committee 24 Staff training 24 The paper systems 25 Government wide safety initiatives 25 The 2002 DET 'Guide to Occupational health safety and injury management' 27 The DET/DJJ agreement 29 The LEATCC Policy 30 The Taking Safety Seriously policy 32 The 2000 'Management of serious incidents Guideline' 33 The 2003 Putland Management Plan 37 OHS Committee activities and detainee risk assessment 38 Was there ongoing staff discontent at Putland as to safety matters? 44 What was the statutory scheme under which Putland was operated and how did that legislation interact with the obligations imposed on the defendant by the OHS Act? 46 What occurred at Putland on 10 March, especially so far as TAS Mary was concerned? 51 What occurred at Putland on 15 March, especially so far as TAS Mary and TAS Su were concerned? 61 What occurred at Putland between 10 and 17 March, especially so far as TAS Mary and TAS Su were concerned? 71 Psychological injury at work - what is 'occupational stress' and 'social support' and what was the expert evidence 75 Occupational stress 76 Ms Knox Haly's opinions 80 Professor Tennant's views 86 Mr Rees' evidence 89 Dr Brown's opinions 95 Did TAS Mary and TAS Su suffer any psychological injury? 100 TAS Mary's controlling personality 102 TAS Su's particular vulnerability 104 Other staff were not injured 107 What is the relevant applicable law so far as psychological injury is concerned? 107 Was TAS Mary at risk from TD on 10 March? 110 What was the risk to TAS Mary which arose on 10 March at Putland? 113 Notice to the defendant 113 Did teacher Ron act appropriately? 115 Did TD return to class unaccompanied? 117 What time did TD return? 118 Did TAS Mary use her duress alarm? 119 Should teacher Ron and TAS Mary have locked the classroom door? 121 Was TD unsupervised? 123 Should TAS Mary have called for help from her classroom? 124 Other system failures 125 The Principal's evidence 126 Subsequent events on 10 March 127 The causal connection between the defendant's acts and omissions and the materialisation of this risk 128 Were the particulars of the charge established? 138 The events of 15 March 2004 - Matter Number IRC 1390 of 2006 167 What was the risk to which TAS Mary and TAS Su were exposed? 168 What information did the staff have about BH before 15 March? 173 Whether the School Rule system was a cause of violent or aggressive behaviour 177 Did TAS Mary have any basis for concern for her safety on 15 March? 178 Should teacher Ron and TAS Mary have left the room when directed to do so by the Principal? 183 Causal connection 185 Particulars 190 10 - 17 March Matter Number 1392 of 2006 208 The social support charge - was it inadequately framed? 208 The drafting 209 Were the events of 10 and 17 March relevant to this charge? 211 Did the exposure to the risk occur at work? 212 The allegation that the place of work was psychologically unsafe 212 The absence of social support producing a psychological injury 214 Cumulative trivial stress 216 Vocational concerns 218 The defendant's systems - risk assessment and risk control 218 The causal connection between the defendant's acts and omissions and the materialisation of the risk. 221 The expert evidence as to social support at Putland 221 Inadequate management support 223 Was it necessary for the prosecution to establish that TAS Mary and TAS Su had symptoms of psychological injury, or a known susceptibility to such injury, before it was sustained, in order to make out the charge? 229 The approach that safety was a matter for the DJJ to ensure and the events of 10 - 15 March 233 BH and 15 March 235 17 March and TAS Su 238 The particulars 238 The proper construction of s 28(a) of the OHS Act, the defence on which the defendant relied in each case, particularly in relation to the concept of reasonable foreseeability. 257 How does the statutory defence operate, especially in the context of a charge relating to a psychological injury? 258 Was the defence established in the case of the 10 March charge? 267 Was the defence established in the case of the 15 March charge? 274 Was the defence established in the case of the 15 - 17 March charge? 276 Conclusion 278 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.