New South Wales Court of Appeal CITATION : State of New South Wales v Karen Therese Stevens [2003] NSWCA 298 HEARING DATE(S) : 02/09/03 JUDGMENT DATE : 15 October 2003 JUDGMENT OF : Mason P at 1; Santow JA at 2; Davies AJA at 3 DECISION : Appeal allowed. Orders para [60]. CATCHWORDS : Negligence - whether Department of Education and Training owed duty of care to a speech pathologist employed by the Department of Community Services but working in a school - whether duty of care breached - whether duty to protect staff against violence by children - whether duty breached in circumstance that child was autistic with severe intellectual disability - whether breach could be proved in absence of expert evidence - whether s151Z(2) of the Worker's Compensation Act 1987 should be applied to reduce the damages awarded LEGISLATION CITED : Workers Compensation Act 1987 s 151Z (2) Wyong Shire Council v Shirt (1980) 146 CLR 40 Haines v Tempesta (1995) 37 NSWLR 24 TNT Australia Pty Limited v Christie [2003] NSWCA 47 CASES CITED : Wilsons & Clyde Coal Co. v English [1938] AC 57 Kondis v State Transport Authority (1984) 154 CLR 673 Sullivan v Moody (2001) 207 CLR 562 F v R (1983) 33 SASR 189 Rogers v Whittaker (1992) 175 CLR 479 PARTIES : Appellant: State of New South Wales Respondent: Karen Therese Stevens FILE NUMBER(S) : CA 41013/02 COUNSEL : Appellant: Mr J.D. Hislop QC, Mr G.P. Rundle Respondent: Mr S.G. Campbell SC, Mr T. Bland SOLICITORS : Appellant: Hicksons Lawyers Respondent: Garrett Walmsley Madgwick Lawyers LOWER COURT District Court JURISDICTION : LOWER COURT 7999/00 FILE NUMBER(S) : LOWER COURT Dodd J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41013/02 DC 7999/00 MASON P SANTOW JA DAVIES AJA Wednesday 15 October 2003 STATE OF NEW SOUTH WALES v KAREN THERESE STEVENS Judgment 1 MASON P: I agree with Davies AJA. 2 SANTOW JA: I agree with Davies AJA. 3 DAVIES AJA: This appeal, from the judgment of a judge of the District Court of New South Wales, Dodd DCJ, raises the issue whether there existed, in the circumstances of the case, a duty of care not to cause harm to others which was reasonably foreseeable and whether, in the circumstances of the case, there was a breach of that duty. It is therefore desirable to reiterate some of the fundamental remarks of Mason J, with whom Stephen J and Aickin J agreed, in Wyong Shire Council v Shirt (1980) 146 CLR 40. 4 In expressing the duty of care, his Honour said, at p 44:- "According to Lord Atkin's statement of principle in Donoghue v Stevenson [1932] AC 562, at p 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff ( Home Office v Dorset Yacht Co. Ltd [1970] AC 1004, at pp 1027, 1034, 1054, 1060; Anns v Merton London Borough Council [1978] AC 728, at pp 751-752)." 5 After discussing the issue of foreseeability, his Honour concluded, at p 47:- "A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable." 6 Dealing with the issue of breach of duty, his Honour said, at pp 47-48:- "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 7 The issues in this case do not require a more fundamental examination of the principles to be applied. The difficulties arise in applying the principles to the facts of the case. 8 The appellant, the State of New South Wales, through its Department of Education and Training, conducted the Port Macquarie Primary School. Conducted as a separate part of the school, was the Port Macquarie Primary School Support Unit, which provided specialised teaching for children with moderate to severe intellectual disabilities. The Department of Community Services also contributed to the Support Unit. The respondent, Karen Stevens, was a speech pathologist who carried on her occupation on her own account but was also employed by the Department of Community Services on a part-time basis, for 23 hours per week. In that capacity, she worked in classrooms alongside teachers and aides employed by the Department of Education and Training. She carried out specific tasks by arrangement with those teachers and aides, particularly under the direction of the head teacher in the Support Unit, Ruth Winfield, who was the assistant principal. 9 For the purposes of the Workers Compensation Act, 1987 ("the Act"), the State of New South Wales, as represented by the Department of Education and Training, must be regarded as a person different from the State of New South Wales, as represented by the Department of Community Services (see Haines v Tempesta (1995) 37 NSWLR 24). However, whether one is concerned with issues arising under the general law or under the Act, the position is that Ms Stevens was working in the Support Unit at the Port Macquarie Primary School as an employed professional staff member, subject to the directions which were given to her by those persons who were in charge of the Support Unit. The duty owed by the State of New South Wales, whether as represented by the Department of Education and Training or by the Department of Community Services, was or was analogous to the duty owed to an employed member of professional staff. See the remarks of Mason P in TNT Australia Pty Limited v Christie [2003] NSWCA 47 at [41]-[43], with which Davies AJA expressed agreement at [149] and Foster AJA at [178]. 10 It follows that the duty of care was "non-delegable" as discussed in Wilsons & Clyde Coal Co. v English [1938] AC 57; Kondis v State Transport Authority (1984) 154 CLR 673 at 680-683. The duty of care could be breached not only by a systemic failure by management to take care of the safety for persons working in the Support Unit but also by casual acts of negligence by members of staff which caused harm to others. 11 It was submitted by counsel for the State of New South Wales, that no duty of care was owed to Ms Stevens to protect her from harm which the students might cause. Picking up a term used in Sullivan v Moody (2001) 207 CLR 562 at [60] and [62], he submitted that the interests of the students were paramount. However, it is beyond question that there was a duty on the State of New South Wales to take reasonable steps to protect Ms Stevens from foreseeable harm. A school is bound to take reasonable steps to protect its employees, and those like Ms Stevens in an equivalent position, from harm, including from dangerous behaviour of students under its control. 12 The issues in the case turn upon the content of the duty in the circumstances of the case and whether what was done constituted a failure to take reasonable care for Ms Stevens' safety. These issues can be considered under the rubric of the scope of the duty but are more readily considered under the rubric of breach of duty. In relation to both concepts, it is necessary to take account of the circumstances of the case, including the fact that the students in the Support Unit were moderately to severely intellectually handicapped and were in the Support Unit for the purposes of instruction and development. Their intellectual handicaps raised problems and risks that had to be dealt with in a reasonable way. An assessment of reasonable care must take account of, inter alia, the welfare of the students. 13 Ms Stevens was a qualified speech pathologist. In January 1997, she applied for the position of speech pathologist, Mid North Coast Area, Port Macquarie, a position which involved working within the Port Macquarie Primary School Support Unit. In her application, she noted that she had been actively involved in Early Intervention services since the commencement of her career and that she had:- "… gained many years of experience working with children who have been diagnosed as having down's syndrome, cerebral palsy, autism/autistic tendencies, those who have been physically and/or emotionally abused, those diagnosed with language delays/disorders of undetermined origin, as well as children with a range of rare and little–understood syndromes." She noted that a significant proportion of her career to that date had been spent in the area of Early Intervention/Developmental Disabilities. Ms Stevens was not a young teacher who was sent to a school where she encountered problems beyond her experience. She was a professional speech pathologist with a great deal of experience working with children of the type who were enrolled in the Support Unit. She knew the problems caused by severe intellectual impairment and she applied for the position because that was the field in which she wished to work. 14 The Support Unit catered for children with moderate to severe intellectual disability caused by any of the full range of congenital or developmental child problems. Those with severe intellectual disability had an extremely limited range of ability in all respects and extremely poor social skills. The children with moderate intellectual disability were not so limited but had very poor communication and social skills. 15 One of the students at the school was D, who was born on 15 July 1989. D was autistic and suffered the communication disorder associated with autism. He demonstrated a number of severe behavioural problems including the physical assault of others, particularly other students, which included hair pulling, biting and kicking. The hair pulling, in particular, had been observed on several occasions, and, on two occasions in 1996, had resulted in hair loss, broken skin, blood and bruises. A lengthy report, dated 11 February 1997, described his hair pulling behaviour in this way:- "Hair pulling represents a behaviour maintained by two reinforcing events. That of sensory activity and adult social interaction. The assessment suggests that in most situations D… is successful in obtaining both of these. Hair pulling prevails in conditions when 1:1 support is not present, where he does not know what to do through lack of instruction or not having the skills required for that condition, i.e., playing with his peers in the playground situation. So in situations that may appear to offer lots to a child, i.e., swings, slippery dip etc., this represents a 'nothing to do' situation for D… In communicative terms, it is felt that D… is using his behaviour to communicate two messages, 'I need someone to help me to get something to do' or 'I need something to do and I don't know how to ask'. It also appears that hair pulling and the associated precursor behaviours in the playground context, in the school classroom and with his mum and dad, are used to retain preferred adult social interaction (physical, verbal, eye contact). The consequence analysis suggests that this has been an effective method for him. … The antecedent analysis suggests that hair pulling may also be a form of a greeting of persons he knows well." 16 As can be seen from this analysis, D's hair pulling, biting and screaming was not the behaviour of a disobedient child who knew better. D's disabilities isolated him from the normal world. His behaviour, which was so troublesome to others, was a means which he used to interact with others and to communicate. The report suggested that "hair pulling may also be a form of a greeting of persons he knows well". It was the school's task to teach D other and better means of coping and communicating. His vocabulary, in early 1997, was limited to ten words. 17 The report dated 11 February 1997 was an assessment of D's situation. The report noted that, during 1996, additional support, on a one-to-one basis, had been provided to D, particularly in difficult times, such as during lunch, recess and community outings. The report noted that "during most of his hours at school he is provided with 1:1 support". 18 On 21 November 1996, the heads of the Support Unit, Ruth Winfield and the principal of the school, Jennifer Ryan, wrote asking for "twenty six hours a week additional aide time for D… on a trial basis for the rest of this year". The letter stated, inter alia:- "… If an additional teacher aide was employed for the rest of this school year for twenty six hours a week, we would be able to provide one to one supervision for D… throughout the school day, thereby ensuring that his behaviours are responded to appropriately. At the end of this period, this program would be reviewed. Unfortunately, unless D…'s behaviours can be changed, we will have to consider exclusion from school. I am reluctant to do this as I believe it would be detrimental to D… and his family." 19 The assigned aide hours for D for which special funding was provided were, in 1997, 21 hours per week and, in 1998, 7 hours per week, which suggests that, over the period, there was an improvement in D's behaviour. A letter of 10 March 1998, from the Department of Education and Training, indicates that the 7 hours per week allocation was discussed at a meeting on 7 February 1998 between D's parents, members of the school's staff and a member of the Department of Education and Training. According to the letter, the resourcing allocation was discussed and agreed to be adequate for D's needs and adequate to ensure the safety of all in the Support Unit. The extent to which D was assigned an aide to care for him on a one-to-one basis outside these hours is not clear. The letter indicated that the resourcing allocation was in addition to a staffing formula of a teacher and an aide for every six students and in addition, also, to Commonwealth Integration Funding for social skills/playground behaviour which involved a very small number of students, including D. 20 The report of February 1997 said that the use of one-to-one support had been effective in preventing D from hurting others. However, the report said that this would appear to be an inefficient use of resources as the intense support was not utilised in teaching D general skills or skills related to his difficult behaviours. The report suggested that one-to-one support could be minimised and it suggested that short alone situations be part of D's educational routine in which he was systematically taught to be alone. The report noted that D needed to be less reliant on adults and that he needed to develop skills across all domains. The report noted that one-to-one support should be provided during high risk times, such as during playground and community activities. 21 The report of 11 February 1997 did not recommend that D be removed from the school. It made recommendations for, inter alia, his support and teaching while at school. In relation to the provision of one-to-one support, the report cited "proactive strategies" that included:- "The provision of 1:1 support during high risk times, i.e., recess and during a respite visit. It was reported that this strategy was effective, however, the availability of funds for such an intervention, particularly if long-term is uncertain." 22 The report specifically recommended:- "Programme intervention thus far for D… has involved procedures that rely on others to make changes for him and on strategies that produce only short-term outcomes, i.e., reinforcement strategies, environmental manipulations involving additional funding. What is so clearly absent are positive programmes that involve teaching D… the specific skills that are equivalent or related to his use of his problem behaviours. These procedures are particularly important as they are known to produce long-term behaviour reduction and therefore should be part of a multi-element support plan for D… Some specific skills and methodologies are recommended in the latter section of this report." 23 The evidence of Ruth Winfield, the head teacher in the Support Unit, does not expressly state the extent to which D was provided with one-to-one support. However, Mrs Winfield said that, when she was teaching D in 1997, she had herself and a teacher's aide. She said that his class had five to six students in it. It would appear that a teacher and a teacher's aide was the ordinary allocation for a class of that size in the Support Unit. Mrs Winfield spoke also of the additional funding, which I have mentioned, and said that the school used part-time teacher aides to work with D because the aides found the task so intensive that they could manage only half a week each. She said that one-to-one supervision was necessary for the control of D and that the hair pulling behaviour prevailed when one-to-one support was not present. She said that, even if a teacher or aide were dealing with D in a one-to-one situation, there were occasions when he would still pull hair. 24 As can be seen, the use of one-to-one support was accepted as effective and recommended at high-risk times. However, the provision of such support at other times was queried. The situation with which the Support Unit was called upon to deal involved children with disabilities, such as D. Because of the serious degree of retardation from which D suffered, dealing with him involved risks which would not ordinarily be encountered in the school environment. People with an interest in the field of caring for disabled persons, such as Ms Stevens, who was a speech pathologist specialising in the treatment of persons with disabilities, were prepared to involve themselves in the teaching and treatment of the disabled children, notwithstanding the risks which were involved. The issue in the present case is deciding what were the reasonable steps for the Department of Education and Training to take in that environment. 25 The trial Judge found that D assaulted Ms Stevens on two occasions. He described those occasions as follows:- "On 21 October 1997 the plaintiff was in the classroom conducting what she called a 'social skills group' with four or five children from the Unit. The Unit head teacher Ruth Winfield was in the classroom. Also in the classroom were a few other children who were not part of the plaintiff's group. Among these other children who were not part of the plaintiff's group was a child whom I shall refer to as 'D'. He had a specifically assigned aide 'Jan' who was also there. She asked if he could watch the plaintiff's group. The plaintiff agreed. The plaintiff sat cross-legged on the classroom floor with the four or five children of her group sitting around her. They were doing what the plaintiff referred to as 'turn-taking' activities. D was about two feet away from the plaintiff, off to the left with his aide. The aide left the room while the plaintiff was conducting her group activities, leaving D. The plaintiff heard a noise like 'aaah' and then felt D on her back, with his hands in her hair. She found she could not move. He remained on her back with his hands clutching her hair and she remained still until the aide returned and with the assistance of the teacher Ruth Winfield, prised D from the plaintiff. … On 4 May 1998 the plaintiff was asked to 'observe' D in the classroom. The plaintiff was very reluctant to do this but was asked to do so by the teacher, Ruth Winfield. The plaintiff was, quite literally, to watch D and write down what he did. She sat on a chair in a corner of the classroom. D was standing in his 'time out' corner opposite the plaintiff some 12-15 feet away. He began to move and circled around the room to the right of the plaintiff. He came within about a foot of the plaintiff and then grabbed her hair from slightly off to the side and in front, and pulled her hair. She tried to pull away. Ruth Winfield got D off the plaintiff and took him back to his corner. He came toward the plaintiff again. He grabbed her necklace which was around her neck and twisted and pulled it, in the process pulling on the neck of the plaintiff. Ruth Winfield again took D back to the 'time out' corner. The plaintiff remained sitting on her chair. The teacher, Ruth Winfield, turned her back on D and he ran towards the plaintiff with his hands out. He grabbed her shirt and sat in her lap. Ruth Winfield took him away again. The plaintiff had had enough, said so, and left." 26 On 2 December 1997, in between these two incidents, there was an assault on Ms Stevens by a girl, R, who was also prone to hair pulling. R came from behind Ms Stevens to pull her hair. The trial Judge did not find negligence on this occasion as there was nothing to give a warning that R might engage in such behaviour at that time and there was no evidence that R required one-to-one supervision. 27 On 3 March 1998, a manager of the Department of Community Services wrote to a superintendent of the Department of Education and Training seeking an increase in the aide hours, which had been reduced. The letter said, inter alia:- "You are, no doubt, aware of the representations made by D…'s mother, Ros Ryan, to renegotiate D…'s aide hours which, on my understanding, were reduced from 21 hours pw in 1997 to Nil in 1998, although now increased to 7 hours pw. This Department provides a Therapy-in-schools' programme which, presently, employs Christine Boss-Walker, Occupational Therapist, and Karen Stevens, Speech Pathologist, each working 23 hours pw. They are both located in the Support Unit and provide therapy, consultancy and support to teachers, aides, students and parents. We also employ Karen Southgate, Developmental Disability Programmer, who has been working with staff to improve D…'s behaviour, etc. Both Christine and Karen were attacked by D… in 1997. Karen has a very severe injury which will impact on her for her whole life. Presently she only works half days, due to the pain to her back caused by D…'s attack. Both therapists, and Karen, wish to continue to support staff with their programmes for D…, but are apprehensive for their safety, especially now that D…'s aide hours have been reduced. To ensure my staff continue to work in a safe environment, could you please review D…'s aide hours, so that the 1997 programmes, which on my understanding have been beneficial to staff and D…, can continue?" 28 However, that request was rejected by the letter of 10 March 1998, which I referred to earlier, the view being taken that the resourcing allocation had been discussed at a meeting on 9 February 1998, at which the interested parties were represented, and had been agreed to be adequate for D's needs and to insure the safety of all in the Support Unit. 29 Ms Stevens had approximately three weeks off work after the incident on 21 October 1997 and had not long returned to work when the incident involving R occurred. She continued to work until the incident in May 1998. After that incident, she took off nearly all of Term 3 in 1998 and when she returned to work it was on severely restricted duties. About that time, it was decided that she should not work with or in the presence of autistic children. 30 It is difficult to be entirely confident about the causes of the pain which Ms Stevens suffered. A few years previously, she had been involved in a motor vehicle accident and had suffered whiplash and other injuries to her neck, back, right leg and knee. Although Ms Stevens said that she had entirely recovered from that accident, some of the reporting doctors thought that she may have suffered an aggravation of pre-existing soft tissue damage. Although Ms Stevens describes, in her evidence, the manner in which her hair was pulled and held by D, her main complaints of pain related to the lumbar and thoracic regions of her spine. After the incident of 21 October 1997, she suffered pain driving a motorcar on rough roads. On the advice of a chiropractor, she put on a girdle to support her back and she wore that girdle until early 1998. 31 Dr A V B Isaacs, an orthopaedic surgeon, on 16 January 1998, reported on her condition as follows:- "I feel that as a result of the incident which took place on the 21st October, 1997 Karen has sustained a soft tissue injury to the lower lumbar spine and injury to the L5-S1 disc resulting in the bilateral sciatic nerve root irritation as well as soft tissue injury to the mid-thoracic area. The accident which took place on the 2nd December, 1997 caused her to aggravate the thoracic injury and the injury to the cervical spine, which she in fact sustained about ten years ago as a result of a motor vehicle accident." 32 On 18 September 2001, Dr A W Searle, an orthopaedic surgeon, reported, inter alia:- "The injuries described above have caused cervical and thoracic and lumbar ligament strains and have injured one or more cervical discs and probably two lumbar intervertebral discs. The injuries have also aggravated her pre-existing but previously symptomless Schuermann's disease in the thoracic spine. The ongoing symptoms from these injuries are permanent and cause a moderately severe degree of disability. … Although physical examination provides evidence that not all of the symptoms and disability are organically based, there is no doubt that these injuries have caused pain and suffering and have severely impaired her social, domestic, recreational and vocational activities. … … Because of the injuries at work described above this lady has a 10 percent permanent impairment of her neck, a 25 percent permanent impairment of back (including the thoracic spine), a 10 percent permanent loss of efficient use of the right arm below the elbow and a 10 percent permanent loss of efficient use of the left arm below the elbow (carpal tunnel syndromes), a 20 percent permanent loss of efficient use of the right leg at or above the knee to include the whole limb, and a 15 percent permanent loss of efficient use of the left leg at or above the knee to include the whole limb, (including any impairment resulting from arthritis of her knees)." 33 It also seems that Ms Stevens suffered something in the nature of an hysterical reaction to the incidents and to her involvement with autistic children. A psychological report from a Professional Injury Management team records, in relation to the first incident, that, "She believed she couldn't do anything because it would make it worse. She experienced helplessness and horror about what may happen." Later, the report said, "Each time she was attacked, she became more horrified and more helpless, because there seemed to be nothing she could do which would protect her from further injury." 34 Dr J P Maguire, a consultant psychiatrist, reported on 31 July 2001:- "* On the other hand, if the weight of medical evidence suggests there could have been evidence of some injury but that Ms Stevens' report of pain and disability was much greater than what would be expected on the basis of clinical findings and objective investigations, then one would diagnose a Pain Disorder Associated with Psychological Factors and a General Medical Condition . * With this disorder one would be postulating that the experience of pain, while genuine, was not primarily due to organic pathology but was serving some unconscious conflict or need in the patient. * … * In response to her experience of pain and disability Ms Stevens became tearful and depressed and it would be reasonable to diagnose an Adjustment Disorder with depressed mood . * … it was Ms Stevens' reported pain that limited her ability to work with other clients, both in her private practice and with DOCS. * Therefore, in my opinion, her 'pain disorder', either primarily organically based or psychologically based, has been the cause of most of her impairment or disability since these injuries occurred." 35 The trial Judge said that, in his view, the report of Dr Maguire held the key to understanding Ms Stevens' problems, in combination with the views of Dr Searle and a Dr Johnston. He said that, of the latter two doctors, he preferred the views of Dr Searle as they appeared "to take account of the radiological evidence more in accordance with the plaintiff's complaints of pain, particularly as to the possibility of disc damage" 36 The trial Judge concluded that Ms Stevens suffered injury to her spine in the first assault by D, that the second assault by D caused further aggravation of the physical symptoms in the underlying condition of Ms Stevens' spine, and that all the incidents cumulatively caused Ms Stevens to experience the psychological reaction described by Dr Maguire. 37 The trial Judge made the following findings on breach of duty:- "On 21 October 1997 the plaintiff was injured by D when the aide assigned to D left the room. The aide knew that D was going to watch the plaintiff's group and her activities. The Unit's head teacher was in the classroom. No specific reason is given for the aide having left the classroom. She was not called to give evidence. In my view, in the light of the matters referred to in the previous paragraph, the failure to provide one-to-one supervision of D is a breach of the defendant's duty, however formulated. This is so, whether the breach be seen as a casual act of negligence on the part of the teacher's aide in failing to carry out her assigned task, for which the defendant is liable, or a failure on the part of the Unit's head teacher in authorising her or allowing her to leave the room, or a failure on the part of more senior Education Department staff in failing either to give sufficient and appropriate instructions to the aide or in failing to provide additional staff so as to ensure one-to-one supervision of D at all relevant times ." "I turn to the incident on 4 May 1998 with D. In my view, after the incident of 21 October 1997 the defendant had in a colloquial sense a heightened duty to the plaintiff to protect her from harm by D. The legal duty remained the same. The circumstances were hardly conducive to attaining that aim. Once D began to move towards the plaintiff the exercise should have been abandoned. Instead he was allowed to assault the plaintiff on three separate occasions, one after the other. It was left to the plaintiff to refuse to go on. An aide or teacher should have been provided to supervise D so as to ensure he did not attack or harm anyone . Whether the breach of duty is seen as that of Ruth Winfield personally in failing to stop him in time, or allowing the exercise to go on, or a more general failure of the Department to provide additional supervision does not matter. The plaintiff's case is made out as to that incident." 38 The view of the trial Judge, that the Department of Education and Training had a duty to Ms Stevens to provide D with supervision "at all relevant times", requires further consideration. 39 One relevant factor is that there was no expert evidence before the Court to the effect that the affairs of the Support Unit should have been conducted differently to the way in which they were conducted. In the absence of expert evidence, a court should be slow to draw the conclusion that persons engaged in specialised activities, such as the teachers and administrators concerned with the Support Unit at the Port Macquarie Primary School, should have used techniques other than those that they did use or should have managed the operations of the specialist unit differently. Judges are not equipped, by experience, to judge for themselves, without the assistance of expert evidence, whether the manner in which a specialist unit has been conducted, was appropriate. 40 In F v R (1983) 33 SASR 189, King CJ said, at p 194:- "The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community." 41 That passage was cited with approval and followed by Mason CJ, Brennan, Dawson, Toohey and McHugh JJ in Rogers v Whittaker (1992) 175 CLR 479. However, where specialist or professional care is concerned, expert evidence can be crucial. As their Honours said in Rogers v Whittaker, at p 489:- "Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play." 42 Another factor to be considered is that the magnitude of the danger from D's behaviour did not seem great. In 1996, there had been two occasions on which other students had suffered some loss of hair and loss of blood and there had been bruising. However, there was no suggestion in the report of 1997 that any person was at risk of suffering an injury of the type which Ms Stevens suffered. Prior to the problems which Ms Stevens encountered after the incident of 21 October 1997, it would have seemed inconceivable that an injury of the severity which she suffered would occur. There were many autistic children in the Support Unit and it was known that hair pulling, touching and scratching could and would occur. The teachers worked in this environment. There is no evidence that serious injury had been occasioned to any person working in such a situation. 43 The letter of 21 November 1996, which sought finance for 26 hours of aide time per week for D, indicated that D's aggressive behaviour appeared to be escalating and that, if his behaviour could not be changed, his exclusion from the school would have to be considered. He was, in fact, suspended for four days in February 1997 for behaviour involving biting, kicking, pulling hair and throwing objects at staff and students. However, it appears that his behaviour improved during 1997. He was not expelled and the aide support was substantially cut early in 1998. Ms Stevens joined the Support Unit in May 1997 and appears to have encountered no significant problem with D until the incident on 21 October 1997. 44 There is also the factor that the provision of one-to-one support for D throughout his whole time at school would have imposed a heavy burden on public funds. Mrs Winfield had sought funding for 26 aide hours, which would have allowed her to provide one-to-one supervision for D throughout the whole of his time at the school. She received funding for only 21 hours per week during 1997 and only 7 hours per week during 1998. In assessing the funding that was provided, the persons who were involved considered the needs and harm posed to others by D's conduct but considered also, as they were bound to do, the other calls made on available funds. The assessment made appears to have been a considered assessment taking into account all the factors relevant to the issue. 45 Moreover, the report of 1997 considered that, outside the high risk periods, expenditure on one-to-one support for D was an inefficient use of resources and that resources would be better applied to teaching him the skills which he needed to cope in a normal way within his environment. The report went further for it positively recommended that D's reliance upon adults be diminished and that he have times when he was left alone so that he would gradually learn to cope with that situation. 46 The impression with which I am left after reading the evidence in the case is that the affairs of the Support Unit were conducted with care. D's behaviour was the subject of detailed consideration from time to time and, in particular, was considered in the lengthy and detailed report of February 1997. This was a report commissioned by the Department of Community Services and it was a report by persons who were experts in the field. Throughout the whole period, the teachers in the school and members of the Department of Community Services gave consideration to the risks that D's behaviour might pose to other persons. 47 Nothing in the evidence suggests to me that there was a lack of care on the part of those teaching in and managing the Support Unit. Ms Stevens was, in early April 1998, placed under the care of a group named Professional Injury Management. Thereafter, that group gave constant and careful consideration to her circumstances. However, it was not until November 1998 that that group, after speaking with Ms Stevens' general practitioner, recommended that Ms Stevens should cease working with autistic students. The report concluded, "Violence from autistic can often not be anticipated and Ms Stevens may physically and psychologically be unable to cope with another assault from an autistic student". 48 In the light of all these factors, it seems to me that his Honour's finding that there was a duty to ensure one-to-one supervision of D at all relevant times was not well founded. On the contrary, the evidence shows that a great deal of consideration was given to D's case and to the risks to others which his behaviour presented. In the absence of expert evidence that the view taken by the relevant people, who were experts in the field, was unsound, I cannot conclude that the Support Unit was bound by its duty of care to provide one-to-one supervision of D at all times. I am not satisfied that any systemic negligence, on the part of the Department of Education and Training, has been established. 49 Furthermore, I am not satisfied that there was any casual negligence on the part of Mrs Winfield or the aide during the incident of 21 October 1997. At the time, Ms Stevens was teaching a group of four or five children. Mrs Winfield, the head teacher of the Support Unit, was in the classroom. So also were a few other children who were not part of Ms Stevens' group. One of those children was D. He had a specially assigned aide. The aide asked if D could watch Ms Stevens' group. Ms Stevens agreed. There was no evidence that D was showing troublesome signs, signs which have been called "pre-cursor signs". The aide left the room for a short time to assist another aide to toilet a child. 50 In my opinion, that conduct was not negligent. The members of staff had many calls upon their time. The aide left the room pursuant to a demand to which she could legitimately respond. Mrs Winfield presumably approved of the action for she was in the room and was the head teacher. Ms Stevens was not left without assistance for Mrs Winfield remained in the room. When D jumped onto Ms Stevens' back, Mrs Winfield and the aide, the latter having just returned to the room, prised D off. 51 Similarly, on 4 May 1998, Mrs Winfield and an aide, who was not an aide specially assigned to D, had charge of a class in which D was one of the students. Ms Stevens was present to observe D and to take notes of his behaviour. This is further confirmation that careful attention was being given to D's case. D was standing in his "time out" corner. The meaning of "time out" was not explained but presumably refers to a period of rest or time alone. D was showing pre-cursor signs. He moved close to Ms Stevens and grabbed her shirt and necklace and made eye contact. The aide removed D from Ms Stevens and took him out of the classroom temporarily. He re-entered the classroom and he grabbed Mrs Winfield by her shirt. She spoke to him and he let go. D then went back to Ms Stevens, she caught his hands and he held her hands gently and made happy sounds. Some fifteen minutes later, D was sitting quietly in a chair. Later on, he re-entered the classroom again. He seemed unhappy. Mrs Winfield arranged for him to be fed. After eating some food, he stood up to go towards Ms Stevens. Mrs Winfield gave him the option of eating an apple. He accepted that option. For some time, he seemed happy. At one stage, he grabbed the shirt of another student who said, "No" and D let go of the shirt. Ms Stevens' notes of the concluding events recorded:- "D… circles around me, I say & sign 'good' for apple he's eating – he seems to imitate 'good' sign Comes toward me – eye contact – turns and sits on my lap – keeps turning around to look at me – when asked to come outside [with] Ruth – grabs my hair & starts squealing" Ms Stevens' subsequent note with respect to the squealing was, "? saying 'I want to stay' " . 52 Mrs Winfield took D away. Ms Stevens, at that stage, left the room stating that she had had enough. One of the Professional Injury Management reports, dated 5 December 1998, records Ms Stevens' comment that, "The teacher seemed surprised that she was leaving". 53 Certainly, in the light of hindsight, it was unwise that Ms Stevens continued working with autistic children after the October incident. However, although Ms Stevens' medical condition was given careful attention, the recommendation that she cease to work with D and other autistic children did not come until late in 1998. As I have said, I cannot draw the conclusion that there was a duty on the Department of Education and Training to provide one-to-one support for D at all times. The evidence shows that D had to be taught how to react to people around him and to the environment in which he lived. Teaching him was a difficult and laborious task. Allowing him some time on his own, making it clear to him when his behaviour was inappropriate, offering him alternatives and building up his speech pattern were some of the steps that were taken to assist with his development. This particular teaching session was under the control of Mrs Winfield, the head teacher. In the absence of expert evidence that her conduct was inappropriate, I cannot draw the conclusion that she was guilty of negligence. Mrs Winfield needed the assistance of experts, such as Ms Stevens, to fulfil her function, the teaching and developing of intellectually handicapped children. 54 I do not accept the conclusion that Mrs Winfield did or failed to do some act which was an act of negligence on her part. Indeed, the proceedings below do not seem to have been fought on the basis that there was some particular casual act of negligence on Mrs Winfield's part. Mrs Winfield gave evidence but neither in her evidence in chief nor in her cross-examination was she asked any questions about the two incidents. The trial Judge did not find any particular casual act or omission on Mrs Winfield's part. In relation to both incidents, he found that the negligence lay in the failure to provide one-to-one supervision for D. 55 Having regard to the totality of the evidence, I am not satisfied that there was any negligence on the part of the Department of Education and Training or its employees. 56 In my opinion, the appeal must be allowed and the judgment below be set aside. 57 In these circumstances, it is not necessary for me to say much as to the other matters raised in the appeal. The appellant challenged the judgment below on the basis that the trial Judge failed to apply s 151Z of the Act. Had I not been of the view that the judgment below should be set aside, I would have upheld this ground of appeal and held that s 151Z applied. In Haines v Tempesta, it was held that separate departments of the State of New South Wales must be regarded as separate persons for the purposes of the operation of the Act. Thus, s 151Z(2) applied, for Ms Stevens was entitled to take proceedings independently of the Act to recover damages from the Department of Education and Training, a person other than the worker's employer, and was also entitled to take proceedings independently of the Act to recover damages from her employer, the Department of Community Services. 58 It was submitted, by counsel for Ms Stevens, that the Department of Community Services was not negligent even if the Department of Education and Training was. This submission provides the reason why counsel relied heavily upon what were said to be casual acts of negligence on the part of Mrs Winfield and the aides. In my view, however, the negligence found by the trial Judge was negligence in employing Ms Stevens in the circumstances where she had to encounter autistic children, including D. The Department of Community Services was fully aware of both D's, and for that matter R's, proclivities, as the report of 11 February 1997 shows. The Department of Community Services was also well aware of the problems which the Support Unit had in obtaining funds for additional aide time. The letter of request of 3 March 1998, which sought funding for additional aide time because of the injuries which Ms Stevens had suffered and which mentioned the apprehension which she and another officer had when working in D's proximity, was a letter written by Mr Mussett of the Department of Community Services. Furthermore, the Department of Community Services, as the employer, was aware of the nature of Ms Stevens' injuries and of the fact that her injuries were likely to be longstanding. 59 In the light of these facts, I am satisfied that, if there had been any negligence in relation to Ms Stevens, the Department of Community Services as well as the Department of Education and Training would have been found to be negligent. Both would have been equally responsible for Ms Stevens' injuries. In this event, had the judgment below not been set aside, the damages assessed by the trial Judge would have had to be reassessed in accordance with the provisions of s 151Z(2). 60 In my opinion, the orders of the Court should be:- (i) the appeal be allowed; (ii) the judgment below be set aside; (iii) in lieu thereof, the proceedings brought by Karen Stevens against the State of New South Wales be dismissed with costs; (iv) Karen Stevens pay the costs of the State of New South Wales of this appeal and to have a certificate under the Suitors' Fund Act, 1951 , if qualified. ********** Last Modified: 10/23/2003 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. 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