Smith v Mater Dei School [2007] NSWSC 820

New South Wales Supreme Court

CITATION : Smith v Mater Dei School [2007] NSWSC 820

HEARING DATE(S) : 18/07/07 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 18 July 2007

DECISION : Declaration made in plaintiff's favour.

CATCHWORDS : ADMINISTRATIVE LAW [1152]- Ombudsman- Other matters- Plaintiff teacher's aide involved in alleged incident of child abuse- Defendant school investigates, reports to Ombudsman- Investigation declared void- Whether plaintiff may seek damages in addition to declaration- Held no cause of action from which damages may flow. EDUCATION [17]- Schools- Teachers- Whether dragging a disobedient child from classroom an assault.

LEGISLATION CITED : Freedom of Information Act 1989 Ombudsman Act 1974, s 25F

Giles v Samuels (1972) 3 SASR 307 CASES CITED : Murdock v Richards [1954] 1 DLR 766 R v Hermes; Ex parte Ball [1967] Aust Arg LR 158 State of New South Wales v Paige (2002) 60 NSWLR 371

Wade Smith (P) PARTIES : Mater Dei School (D1) The Province of Sydney as Trustee for the Catholic Commission for Employment Relations (D2)

FILE NUMBER(S) : SC 4821/05

COUNSEL : M Vincent (P) P Skinner (D)

SOLICITORS : Bowring Macaulay & Barrett (P) Carroll & O'Dea (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 18 July 2007

4821/05 – SMITH v MATER DEI SCHOOL JUDGMENT 1 HIS HONOUR: The plaintiff was formerly employed by the first defendant, which is a school operated by the second defendant. He was initially employed as a gardener, but was later promoted to teacher's aide and first aid attendant. 2 The plaintiff resigned his employment on 23 January 2006 purporting to make his resignation effective as of 21 November 2005. His parting company with the first defendant had nothing to do with the incident which I am about to relate. The only significance of that is that the plaintiff has claimed damages for the loss of his remuneration as a first aid attendant for about two years which was a result of the incident. 3 By his amended summons, the plaintiff seeks a declaration that the defendants' investigation into the incident was so flawed that it is void and that the subsequent reports about the investigation to the Ombudsman under s 25F of the Ombudsman Act 1974 are void. 4 The first defendant operates a school charitably described as a school for children who have mild to moderate intellectual disabilities. One of those children is a boy whom I will call "Keith" (which is not his real name) whose behaviour was such that he needed to be given regular medication while at school during the luncheon recess. 5 On 30 July 2003, Keith, then aged 7, was to receive his medication and the plaintiff was involved in administering that medication in the First Aid Room. Keith usually refused to take his medication and he did so on this day. The plaintiff says that Keith was well skilled in avoiding the medication and he was also skilled in removing himself from restraint by using agility, speed and strength. He would scratch and he would kick, both while standing and lying down, squirming, punching and slapping as well as clinging to furniture, etc, to avoid removal. That has never been gainsaid. What appears to have happened is that Keith's attitude on this particular day was such that the plaintiff removed him from the First Aid Room. There seems little doubt that he did so, however, the way in which he removed Keith is described differently by various people. 6 On 1 August, the Principal, Mr Pitt, was informed by one woman, "P", that Keith kicked and screamed whilst they were attempting to give him his medication and yelled at the plaintiff, "Get out of this room." She says the plaintiff was outraged, got up and dragged Keith by one leg from the First Aid Room and dumped him outside saying, "Don't you dare tell me to get out of my room." Keith then got up and followed a woman, "L", to Keith's classroom and his classroom teacher. P says that the response of the staff present was "to remove the child and ourselves away from this aggressive behaviour displayed by [the plaintiff]." 7 The other woman, L, initially said in her report of 31 July that upon Keith saying that he didn't want his medicine the plaintiff grabbed Keith's clothes, one hand on the shoulder and one on the pants leg, dragged Keith out of the First Aid Room and then chucked him on the floor and said, "I don't need this and I don't need you", and that Keith then ran down the stairs. She then said she took Keith on her lap and tried to calm him down as he was screaming. Then another officer of the school came down and took over. 8 The Deputy Principal gave a report the following day, 1 August, that L had said that Keith was yelling, screaming and non-compliant, that the plaintiff had been angry and picked up Keith and had thrown him out of the First Aid Room into the hallway, and that then she, P and Keith had walked from the hallway and that Keith had run downstairs. The report of the interview with L on 1 August says that the plaintiff grabbed Keith by the shirt at his shoulder and his pants at the ankle and dragged him to the door and threw him out the door. L's perception was that the child landed and may have banged his head. Keith then ran down the stairs and L followed him and comforted him. L then went back to the lunchroom, grabbed her lunch and left. 9 In the formal interview with P, P said that Keith screamed at the plaintiff, "Get out of this room", the plaintiff then pulled Keith by the leg, Keith was wriggling around on the floor at this time, and dragged him out of the First Aid Room. The plaintiff let go of Keith's leg and left him lying outside the First Aid Room on the carpet. He was yelling out quite violently, "Don't you dare tell me to get out of my room." Then the investigator stated: "I asked P to be very specific with regard to the way that [the plaintiff] had moved Keith out of the First Aid Room as there are obvious discrepancies in the two versions of events. P was quite emphatic that the child was dragged by one leg, not carried and that he was left outside of the room. P also stated that the child returned to his classroom and not down the stairs as reported by L." 10 The Principal, Mr Pitt, noted in his evidence that both P and L appeared to be very emotionally upset when they made their statements. This fact probably has two significances: (a) that an experienced decision maker would need to evaluate very carefully their evidence, especially when the evidence included coloured words such as "chucked"; but (b) that unless the women were normally hyper-reactive or, alternatively, were involved in problem personal relationships in the school, that something out of the ordinary had happened on this particular day to upset them. 11 On 4 August, that is, the following Monday, the Principal says that he called the plaintiff in to see him in the morning and said to the plaintiff that there was an allegation made about him concerning the way he treated Keith last Wednesday. The plaintiff asked what he was supposed to have done and the Principal said: "The allegation is that Keith was playing up when you tried to give him his medicine and that you grabbed him by the leg or the ankle and dragged him outside the First Aid Room and dumped him on the floor."