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IN THE COUNTY COURT OF VICTORIA Revised ATMELBOURNE Not Restricted COMMON LAW DIVISION | Suitable for Publication GENERAL LIST Case No. Cl-13-01901 MACY LOUISE CANTA Plaintiff v STATE OF VICTORIA Defendant JUDGE: HER HONOUR JUDGE K L BOURKE WHERE HELD: Melbourne DATE OF HEARING: 9, 10, 11, 12, 13, 15 and 16 June 2015 DATE OF JUDGMENT: 41 December 2015 CASE MAY BE CITED AS: Canta v State of Victoria MEDIUM NEUTRAL CITATION: [2015] VCC 1795 Subject: Catchwords: Legislation Cited: Cases Cited: Judgment: APPEARANCES: For the Plaintiff For the Defendant REASONS FOR JUDGMENT NEGLIGENCE Workplace injury — school teacher — psychiatric injury — injury to the cervical spine — duty owed by an employer to an employee — foreseeability — damages Wrongs Act 1958 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALUR 839; Wyong Shire Council v Shirt (1980) 146 CLR 40; McLean v Tedman & Brambles Holdings Ltd (1984) HCA 60; State of New South Wales v Fahy [2007] HCA 20; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Roseberg v Percival (2001) 205 CLR 434; Vairy v Wyong Shire Council [2005] HCA 62; March v Stramare (1991) HCA 12; Stapley v Gypsum Mines Ltd [1953] AC 663; Kondiis v State Transport Authority (1984) 14 CLR 672; Jannelio v BAE Automation & Electrical Services Pty Ltd [2008] VSC 544; ‘Swann v Monash Law Book Co-operative (Yas Legibook) [2013] VSC 326; Willett v State of Victoria [2013] VSCA 76; Amaca Pty Ltd v King [2011] VSCA 447; Purkess v Crittenden (1965) 114 CLR 164 Judgment for the plaintiff. Counsel Solicitors Mr R McCredie with Amold Thomas & Becker Mr A C Dimsey MrT J Casey QC with Minter Ellison Ms MJ Lang COUNTY COURT OF VICTORIA 250 Wiliam Street, Metbourne Table of Contents INTRODUCTION.. Issues for determination. LEGAL PRINCIPLES.. The Plaintiff's pre-injury health and domestic situatic The Plaintiff's witnesses. Expert evidence .. Lay evidence. The Defendant's witnesses Credit The Plaintiff's witnesse: The Defendant's witnesses EVENTS PRE ASSAUL" Knowledge of Joshua’s propensi The Plaintiff. Ms Forrest, Mr Pratt. Ms Winfield The class handover The Plaintiff. Professor Roberts... 29 Mr Pratt... 31 Ms Winfield .. Ms Forrest. Ms Fletcher. The Plaintiffs high needs teaching experience/classroom dynamics at the start of the school year. The Plaintiff. Mr Pratt... Professor Roberts. Ms Forrest. Ms Winfield .. Joshua’s behaviour in 2008 prior to the assault... The Plaintiff. Ms Winfield Mr Pratt. The Plaintiff's career plans in 2008 — play therapy The Plaintit Mr Pratt.. THE BOWLING ACTIVITY Professor Roberts... COUNTY COURT OF VICTORIA 260 Wiliam Stzeet, Melbourne Pre-planning and risk management strategies for the excursion. Mr Pratt Professor Roberts. Ms Forrest... Ms Fletcher. THE MORNING OF THE ASSAULT. The Plaintiff. Ms Fletcher. Ms Winfield Mr Pratt... The assault .. The Plaintiff. Ms Winfield Ms Fletcher Mr Pratt Post assault. The Plaintiff. 67 Mr Pratt 69 The second incident. Question 1 Was there a reasonably foreseeable risk that the Plaintiff would suffer injury as a result of the schoo'’s actions? Question 2. What would a reasonable school have done in response to the ris Question 3. Were the actions of the school that were not reasonable a cause of the Plaintif's injury, loss and damage? Question 4... What is the nature and extent of the Plaintif's injury, loss and damage? . Post assault/the Plaintiff's medical treatment..... Mr Heffernan... Medical evidence - the Plaintiff. Treaters Medico-legal evidence 101 Investigations. The Defendant's medico-legal evidence Overview.... Question 5. What is an appropriate sum for damages for pain and suffering?. COUNTY COURT OF VICTORIA 250 Wiliam Street, Melbourne HER HONOUR: INTRODUCTION 1 The defendant operated @ special school, Mamebek, in Cranbourne ("the school"). At all relevant times, Dennis Pratt was the school principal and the plaintiff was employed as a special/high needs teacher. It was not disputed that the defendant was liable for the actions of Mr Pratt and the Assistant Principal Ms Fletcher by virtue of the application of s23(1)(b) of the Grown Proceedings Act 1968. The defendant admits that on a school excursion’ to the Cranbourne bowling alley (‘the Bowl”) on 14 February 2008 (‘the said date”), the plaintiff suffered injury when assaulted by one of her high needs students, Joshua (‘the assault") Whilst there are a number of particulars of negligence, in essence, the plaintiff asserts that the defendant breached its duty of care by failing to provide a safe system of work, in that it ~ (i) failed to ensure proper and effective planning was undertaken prior to the excursion and allowed it to take place with Joshua in attendance; and (ii) having allowed the excursion, failed to provide sufficient staff, supervision or risk strategies to deal with Joshua’s behaviour at the Bowi? Whilst admitting it owed the plaintiff a duty of care at common law and under the Department of Education and early Childhood Development Legal Liability and Associated Matters Policy® (‘the Education Department Policy"), the defendant denies it was negligent. Transcript 'T* 390 z 7567-8 2 Clause 4.4.1and Clause 6.16,1.1 eee iiie! 1 JUDGMENT Canta v State of Victoria 6 There was no allegation of contributory negligence or volenti, The defendant's denial was based on the plaintiff, knowing Joshua's propensity for violence, choosing to take him on the excursion when she was not required to do so. Further, the defendant denied the plaintiff had reported any problems with Joshua when he was in her class in 2008 before the assault. 7 Although pleaded in its original Defence, the defendant ultimately did not rely ‘on the principles in Koehler v Cerebos (Australia) Ltd.4 Issues for determination (a) Was there a reasonably foreseeable risk that the plaintiff would suffer injury as a result of the school's actions? (b) Ifyes, what would a reasonable school have done in response to that risk? (c) Were the actions of the school, that were not reasonable, if so found, a cause of the plaintif's injury, loss and damage? (4) What is the nature and extent of the plaintiff's injury, loss and damage? (e)_ In what sum should the Court assess the plaintiff's pain and suffering damages? LEGAL PRINCIPLES The scope and duty of care of the Defendant 8 As the employer, the duty owed by the defendant to the plaintiff was set out in the joint judgment of the High Court in Czatyrko v Edith Cowan University:® “An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.” 9 The employer's obligation is not merely to provide a safe system of work; it is + (2005) 222 CLR 44 © (2005) 244 ALR 349 at paragraph 12 VOC:ASILMIAS 2 JUDGMENT Canta v State of Vietoria 10 1 12 an obligation to establish, maintain and enforce such a system. The common law principals, unaffected by statute, apply to a determination of breach of duty and causation in a case brought by an employee against his or her employer. In Wyong Shire Council v Shirt,” the High Court authoritatively stated the test of foreseeability in determining the content of the duty of care was: "A risk which is not far-fetched or fanoiful is real and therefore foreseeable. In State of New South Wales v Fahy,* the High Court set out what at times has been referred to as the “Shirt calculus": “56, The Court's decision in Shit has rightly been understood es authoritatively stating how a tribunal of fact must set about deciding whether there has been a breach of duty of care, The description of that task, in the reasons of Mason J, though weil known, should be set out: ‘{T)he 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, itis 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 | 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 McLean v Tedmen & Brambles Holdings Ltd (1984) HCA 60 at paragraph 12 (1980) 146 CLR 40 © (2007) HCA 20 at paragraphs 56-58 VeciAsm.WAs 3 JUDGMENT Canta v Stale of Victoria 13 As J Forrest J stated in Hardy v Mikropul Australia Pty Ltd,? therefore, it is a question of whether the reasonable employer in the position of the defendant would, at the relevant time, have foreseen that its conduct involved the risk of 87. degree of probability remain to be considered with other relevant factors.’ This approach to questions of breach of duty has come to be known as the ‘Shirt calculus’. The description may be convenient but it may mislead. Reference to ‘calculus’, ‘a certain way of performing mathematical investigations and resolutions’, may wrongly be understood as requiring no more than a comparison between what it would have cost to avoid the particular injury that happened and the consequences of that injury. Shirt requires a more elaborate inquiry that does not focus only upon how the particular injury happened. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury.” injury to the plaintiff. 14 The High Court, whilst acknowledging Wyong Shire Council v Shirt ®° remained the law in terms of the test of foreseeability, emphasised that in determining the foreseeability of risk, it was important not to apply “the prism of hindsight.” 15 In Rosenberg v Percival," Gleeson J said: In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted, The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated 58. In Vairy v Wyong Shire Council? it was explained why it is wrong to focus exclusively upon the way in which the particular injury of which a plaintiff complains came about. In Vairy, it was said that: ‘TThe apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be 7 [2010] VSC 42 at paragraph 225 © Supra 11 (2001) 205 CLR 434 at paragraph 16 "2 (2005) HCA 62 VOC:ASILWAS. 4 JUDGMENT Canta v State of Vietoria equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.” It is only if the examination of breach focuses upon ‘what a reasonable man would do by way of response to the risk’ (emphasis added) that it is sensible to consider ‘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’.” 16 In March v Stramare,"3 the High Court adopted a common sense approach to causation. Following this approach, the cause of a particular occurrence is determined “by applying common sense to the facts of each case." Background 17 The plaintiff is presently aged fifty-three, having been born in Gippsland in July 1962. She left school at fourteen, then worked at Coles and did some cleaning In 1980, she started a Tertiary Orientation Program (TOP Program) at Swinbume. 18 In December 1983, the plaintiff gave birth to her son, Boyd. Her relationship with the child’s father ended soon thereafter. 19 In 1988, the plaintiff completed VCE at Drouin High School. From 1989 to 1991, she attended Gippsland TAFE. She then started an accountancy course, changing over to a Ceramics Diploma, which she completed. "8 March v Stramare (1991) HCA 12 per Mason Cd 4 Lord Reid in Stepley v Gypsum Mines Ltd [1953] AC 663 5 JUDGMENT VCC:ASILMAS Canta v State of Victoria 20 From 1992 to 1995, the plaintiff attended Monash University, where she obtained a Visual Arts Degree. In 1996, she went on to complete a Diploma of Education. 21 From 1997 to 2000, the plaintiff obtained casual relief teaching work as a teacher in both primary and secondary schools. She then had short-term contracts with the Department of Education and Early Childhood Development. 22 In 2004, the plaintiff had her first permanent job as a teacher at Emerson, a special school in Dandenong. It was her first job teaching children with some form of handicap. There, she taught Year 7-9 mainstream subjects. 23 Whilst at Emerson, the plaintiff obtained her Masters in Special and Gifted Education (‘the degree”). In that two-year course, the plaintiff was trained how to adapt the curriculum so children with learning problems could understand it and assimilate it. The degree did not involve any training in looking after the needs of handicapped children. * 24 In September 2006, the plaintiff accepted a job at the school. She thought this role would offer her leadership opportunities, as well as a teaching role. In 2007, she worked as a special needs classroom teacher in the middle school, teaching a class of ten to twelve-year-old girls. 25 There were also high needs classes which operated separately within the school."® High needs classes were situated closer to the office, with special needs classes located at the other side of the school.” 26 High needs students were those with an IQ of less than 50. They often had communication difficulties, as well as other areas of functional difficulty. - 1123, «Tas ial ‘TS1 bad T356 Mr Pratt acta 6 JUDGMENT Canta v State of Victoria The assault a 28 30 34 32 The Plaintiff's pre 33 VCC:ASILMIAS. On the said date, the plaintiff decided to take three of her four students Michelle, Erica and Jacob on bowling excursion. She had not previously taken a class to the Bowl. When leaving the school, the plaintiff, her aide Rosalyn Winfield and the class met Ms Fletcher the vice principal who had Joshua, the fourth member of the plaintiff's class with her. The plaintiff did not want to take Joshua to the Bowl because he was unsettled and not ready to go on the excursion. She asked Ms Fletcher if he could be left at the school. Ms Fletcher told the plaintiff that bowling was part of the school curriculum and that she was to take Joshua bowling as there were no staff available at the school to look after him. The plaintiff and Ms Winfield then took the class to the Bowl. Whilst there, Joshua started to throttle Erica. The plaintiff intervened and whilst trying to separate the two students, Joshua hit the plaintiff in the back of the head, knocking her to the ground where he proceeded to kick her repeatedly, causing her spinal and psychiatric injury. Following the assault, Ms Fletcher was called to the Bowl and the class then returned to the school. After about a week off work, the plaintiff returned to the same class when she was again assaulted. Following that second incident, the plaintiff had a further absence from work and returned on modified duties until leaving the school in May 2008. She has not returned to work since. jury health and domestic situation Prior to the said date, the plaintiff suffered some back pain. She was involved in a transport accident in 1978. After six months, her whiplash injury resolved. 7 JUDGMENT Canta v State of Vietoris 34 She had a further injury to her spine in 1980 when assaulted by her brother, suffering a fracture at L3-4. She recovered from that injury save for some ‘ongoing numbness in her tailbone and difficulty with the birth of her son. The plaintiff was involved in a further transport accident in June 2007, following which she was absent from work for a week. From 2002 to 2006, the plaintiff was involved in a relationship. At the end thereof, she had to take out an intervention order against her former partner. As at the said date, the plaintiff was living with her son, Boyd, in Cranbourne. The Plaintiff's witnesses 35 36 37 38 VOC:ASILMIAS Expert evidence Professor Jacqueline Roberts, Professional Chair for Autism at the Autism Centre of Excellence at Griffith University, was the only expert witness in this case. Professor Roberts considered that there was no evidence that there was adequate planning for the management of Joshua's behaviour while on exoursions outside the school. Further, there did not appear to be any adequate support in place for both the plaintiff and her students, particularly as Joshua had a history of known aggressive behaviours. In Professor Robert's view, there were procedures that ought to have been put in place in the absence of adequate support. If they had been, such behaviour would not have occurred in the first place. There was no reason, in her view, why such training or support might not have been available to have been provided. At the time Professor Roberts provided her report, she was unaware that Joshua had previously gone bowling and enjoyed the activity. She did not know that three of the students in his class had been in a class together the previous year, nor did she know the Bowl was closed to the public during the excursion. 8 JUDGMENT Canta v State of Vietoria 39 40 a In my view, when advised of these additional facts, her opinion did not change to any material degree." Lay evidence The plaintif's son, Boyd Heffernan, was aged twenty-four and resided with the plaintiff at Cranbourne at the time of the assault. He described the plaintiffs active lifestyle as a hardworking teacher prior to the assault. Thereafter, the plaintiff has suffered significant emotional upset and there have been difficulties with their relationship. The Defendant's witnesses 42 43 44 45 46 7587 VOCASILMIAS Dennis Pratt was the school principal from 2002 to 2009. He is currently the Acting Deputy Director of the South Eastern Region of the Education Department. Mr Pratt detailed the email chain between himself and the plaintiff early in 2008 concerning her plans to study play therapy late that year. Mr Pratt described the planning involved relating to the composition of classes at the school for the new school year and the documents that would usually be available to a new class teacher. Mr Pratt denied that the plaintiff requested Joshua not be put in her class. The plaintiff had not complained to him about any violent behaviour by Joshua prior to the assault. Mr Pratt described the excursion policy and the rationale for taking students bowling. His recall of the assault was “not all that good”. He thought that Kathy Weston and Rhonda Fletcher were involved in a debrief of the plaintiff thereafter. 9 JUDGMENT Canta v State of Victoria 47 48 49 50 5 52 53 VOC:ASILMIAS Delia Forrest was a classroom teacher at the school between 2002 and early 2008, when she left on stress leave. Ms Forrest described the handover process involving new students at the start of a new school year and the documentation relating to students that would have been provided to a new teacher. Joshua was a member of Ms Forrest's class in 2007. There were a number of documents available to her in this role detailing Joshua’s behavioural issues since the age of two. Ms Forrest described the star charts that she compiled during the 2007 school year detailing Joshua's behaviour during epileptic absences and also the April 2007 Behavioural Support Plan which she authored. Ms Forrest had taken Joshua bowling in 2007. He enjoyed the activity and had not been a problem when bowling. She thought it was very rare that Joshua reached Level 3 behaviour and she blamed any escalation in his behaviour on his medication. Ms Forrest disagreed that Joshua required constant supervision. She confirmed however that in 2006, he had his own aide in her class of eleven boys. Rosalyn Winfield is currently employed as an educational support officer with Brookside P9 College. Having started at the school as a volunteer, she obtained part-time employment in 2006, five days a week, in Ms Forrest's class. She was her aide the following year in a class of four. She was the aide in the plaintiff's class in 2008. Ms Winfield attended the Bowl with the plaintiff and the class on the said date. Ms Winfield provided a short sworn statement on 25 February 2008 as to the assault circumstances. 10 JUDGMENT Canta v Stale of Victoria 55 87 59 Rhonda Fletcher is presently employed at Peninsula Specialist College. She started at the school in 2004 teaching in the middle school. From 2005 to 2007, she taught in the senior area. Ms Fletcher and Kathy Weston were the Assistant Principals in the first term of 2008. Ms Fletcher was responsible for looking after the middle and secondary area, including the plaintiff's class. The head of the middle school, Lisa O’Brien, was also the plaintif's direct report. Ms Fletcher detailed the documents that would have been available to a new teacher at the start of the school year. She confirmed the excursion policy and the rationale for taking students bowling. She described the cards students ‘would be given to communicate with staff whilst at the Bowl. Ms Fletcher had no recollection of speaking to the plaintiff on the moming of the assault. She had seen the “Extreme or Dangerous Behaviour Report” completed by her that day but she had no recollection of the assault. Teachers were not required to go bowling. It was their choice whether or not to go on an excursion. If she had been approached by the plaintiff in the terms described, it would be a matter for discussion if a student did not attend. If the conversation had taken place, it was very much in line with the type of issue she would expect to have discussed but she would never force a teacher to take a child on an excursion. She maintained that there would always be facilities at the schoo! to look after children who did not go on an excursion. Credit 60 61 Vec-asiLMas Overall, | found the plaintiff to be a truthful witness who gave evidence over two days quite cogently, although at times crying and visibly distressed. The plaintiff was totally focused on the issues involved in her litigation and displayed a strong sense of injustice at the manner in which she had been treated by the school, and the principal in particular. " JUDGMENT Canta v State of Victoria 62 64 65 66 a 1519 a 1373 While the defendant's counsel submitted there was significant animosity on the plaintiff's part against the school that continued into this hearing”? in my view, any animosity does not detract from the veracity of the plaintiff's evidence generally. Further, Mr Pratt thoughit there was no negative relationship between himself and the plaintiff2* Although the plaintif's evidence in relation to some matters was clearly unreliable and incorrect, and her description of events was somewhat exaggerated, in particular as to matters involving Joshua before the assault, in my view, she retained some objectivity, particularly as to the main parts of her case, and | largely accept her description of the relevant events. Further, the plaintiff's evidence was largely uncontradicted, with the defendant's witnesses not having any memory of most events and giving evidence in terms of what should have happened or what normally would have occurred Clearly, there are a number of inaccuracies in the plaintiff's affidavit in support of her s134AB application swom on 20 June 2012.” These included details of Joshua's name, there being an Education Department directive that Joshua be provided with 1:1 supervision in 2007 and the plaintiff's belief that Joshua had killed his pets over the Christmas holidays. However, it is undisputed that the assault did occur involving Joshua. Further, in 2006, he was allocated one staff member in the classroom. Whilst Joshua did not kill his pets and there was no directive that he be provided with his own aide in 2007, these issues may well have been the subject of staffroom discussion, as the plaintiff explained, and she believed them to be true until advised otherwise during the hearing. She then conceded her belief was incorrect. Further, | accept the plaintiff was confused about Joshua's % —Gross-examination: 1114-21 VoC:ASILWAS 12 JUDGMENT Canta v State of Victoria 67 68, 69 70 n = T1876 “1875 VOCAsM.MAS starting time in the class, having mixed him up with Jacob. This issue was ‘sorted out when she was provided with the class list for the first time during cross-examination.9 Whilst the plaintiff did not make specific reference in pre-incident emails to ongoing problems with Joshua's behaviour in the classroom, taking into account all the evidence, | accept that these difficulties existed. Generally, | found the plaintiff a credible witness, albeit at times unreliable. She did not exaggerate her psychological issues following the assault and the effects of the assault on her life. As counsel for the plaintiff submitted, there was no effort made by the defendant to suggest any dishonesty on the plaintiff's part2* The Plaintiff's witnesses Professor Roberts was an impressive witness. Clearly, she had significant specialist knowledge of the needs of autistic children and what policies should be in place for their care, particularly in a school environment. She made appropriate concessions when given further information as to the excursion circumstances. She was impartial and did not act as an advocate on the plaintiff's behalf. Boyd Heffernan, the plaintiff's son, was a truthful, credible witness who was obviously affected by the deterioration in relationship with the plaintiff since the assault. The Defendant's witnesses There was very little evidence relied upon by the defendant, whether documentary or oral, as to the handover of the class, Joshua in particular, and what, if any, information relating to him was made available to the plaintiff at the start of the school year. 13 JUDGMENT Canta v State of Victoria 72 73 74 75 76 % T381- % 7522 VeCASILWAS There was a similar absence of evidence in regard to any planning for the excursion and any action taken by the defendant thereafter. Significantly, whilst the assault was admitted, no member of the school staff had any independent personal recollection of what was obviously quite a significant event. Ms Fletcher's lack of recollection of the assault and the events thereafter is quite extraordinary, particularly when she noted in the “Extreme and Dangerous Behaviour Report” having been kicked in the groin by Joshua later in the day, after the assault. | accept that Ms Forrest was as an impressive witness and a very competent high needs teacher, as counsel for the plaintiff conceded. However, there was a tendency on her part to excuse Joshua for his behaviour and focus on problems associated with his autism when giving evidence about school policies. My general impression was that the focus of school staff was on the students, rather than on staff welfare, as the plaintiff pointed out in her email to Mr Pratt of 21 February 2008.%° Whilst such a focus is laudable, it does not diminish the duty owed to the plaintiff and may explain the lack of recollection of the issues involved in this assault, as student violence was not a rare occurrence in that school environment. Counsel for the defendant submitted Mr Pratt came across as a very caring and competent principal and his evidence should be accepted when he said various events did not occur.2° In my view, however, Mr Pratt’s evidence was not particularly reliable, given his lack of knowledge of the assault and his inaction thereafter. His evidence was largely based on what the procedure was and what should or would have Mr Pratt 14 JUDGMENT Canta v Slate of Victoria 78 happened, not what did happen. There were however some issues where the plaintiff was clearly mistaken, and | accept Mr Pratt's evidence that there was no Education Department directive that Joshua have a 1:1 staff allocation in 2007. Rosalyn Winfield knew so little about any relevant matters that | am unable to make any finding as to her credit. EVENTS PRE ASSAULT Knowledge of Joshua’s propensity for violence 79 80 at 82 7 155 % TH05 T1168 ® Te VeC:ASILMIAS The Plaintiff Prior to the said date, the plaintiff had seen Joshua cordoned off in the playground, separated from other students for their safety. It was her understanding that he would hurt someone.27 The plaintiff was concerned Joshua would join her class but she was not sure it would happen. She thought he would be put in another class. She had not been “schooled or educated” as to Joshua's needs or what his role would be in her class. She assumed she would be told if he was to be in her class permanently.?° The plaintiff was first assured by the principal she would not be allocated Joshua, but when that did happen, she did what she was told, she accepted her role and she was “quieted”. Through the staff rumour mill, the plaintiff thought Joshua had killed his pets over the Christmas holidays.%° When advised in cross-examination that this information was incorrect, the plaintiff agreed she must have been mistaken in this regard but that was what she had been told, 15 JUDGMENT Canta v State of Victoria 83 a4 85 86 87 * Ts0 2 1184 = 1178 “ T207 8 1182 T1890 ” T2190 = 1183 VOC:ASILMAS Further, the plaintiff believed there was an Education Department directive that Joshua have his own teacher's aide all the time.*" Whilst this also was incorrect, that was the policy in force in 2006 when Joshua was in the large class of boys taught by Ms Forrest.2? Ms Forrest Ms Forrest first came into contact with Joshua when she started at the school in 2002. He was then nine or ten. She was aware he was a high needs child.* She had only ever taught high needs students. In 2006, when Joshua was in her class of eleven boys, Ms Forrest needed a part-time aide in the mornings to work one-on-one with him, because he got bored very quickly with his limited concentration span in a class of that size. As part of his disability, he would kick out. The one-to-one arrangement was to keep Joshua focussed and to keep him on track so his goals could be met. It had nothing to do with controlling particular behaviours.°° Ms Forrest thought the 2006 class was not the most successful classroom set up. She managed it, because she was an excelient teacher, and that is why she was given that class and why Joshua was put in it.” Ms Forrest explained that Joshua played by himself in a special courtyard. The playground was noisy and sometimes chaotic, with a lot of little children running around, High-pitched sounds were a trigger for Joshua's behaviour.** 16 JUDGMENT Canta v State of Victoria 88 89 20 91 92 93 94 8 124 © 1216 “7250 1287 1185 “ — Ti90 © 7205 VOC:ASILMIAS Ms Forrest was aware from an early age that Joshua was sensitive to high- pitched squealing noises. The noise of little children did not work well with him.3? Noise sensitivity was a major feature of Joshua’s sensory makeup but it was only some sounds.” Ms Forrest thought Erica's high-pitched squealing might well be a trigger or a baiting noise for him.‘ Joshua was also directed to sit on a shiny mat. He knew when this happened he was in a bit of trouble and needed to change his behaviour.“ In 2007, Ms Forrest's class comprised Michelle, Richard, Joshua and Jacob. Ms Forrest went off on sick leave in August that year because of the stress of teaching Richard. His behaviour was problematic, inappropriately touching Jacob, Ms Forrest and her aide.4? That class was far more structured than the 2006 class. It was a high needs class that was managed differently.“ Joshua did not require one-to-one supervision that year.*® Ms Forrest wrote an Individual Positive Behaviour Support Plan for Joshua on 20 April 2007. She described “target behaviours” as Joshua’s aggressive behaviour (verbal and physical) at school. Ms Forrest described three levels of escalating behaviour from Level 1, which included lots of giggling, dribbling and oppositional behaviour, to Level 3, which 7 JUDGMENT Canta v State of Victoria 95 7 99 400 "7216 VOC:ASILMIAS involved kicking, hitting other students, especially female students or little children. Joshua's behaviour was reported as occurring several days a week to varying degrees, sometimes not occurring until immediately prior to three o'clock, following “an otherwise great day’. Ms Forrest noted that that behaviour had a physical impact on staff in the classroom and impacted on other students, especially the female students and little children outside the classroom. Ms Forrest described “possible communicative function of behaviour’, noting Joshua retreated into his own world whilst being aggressive towards others; he was unable to communicate appropriately when he reached Level 2 and on most days, he was agreeable until after 11.10 when another dominating student (Richard) had left the room. On other occasions, Joshua appeared to become verbally and physically aggressive after he had experienced an epileptic absence or when he was really tired. The short-term goal was to help Joshua recognise when he needed a break by asking him if he wanted to go to the courtyard and help him ask for a break himself, following reminders. Various strategies were set out in terms of Joshua's behaviour at Level 1 and Level 2. At Level 2, if his aggression did not reduce and increased, he was to be shown a behaviour script and told to get his book and go to the courtyard. 18 JUDGMENT Canta v State of Victoria 101 102 103 404 105 106 “ T192 T1938, VeC:ASILWAS There was no Level 3 strategy. Joshua very rarely reached Level 3 and when he did so, it was very much related to his medication” Level 3 was spending time in the courtyard.“® Ms Forrest noted the data required was: observations of Joshua following epileptic absences, data collected on the frequency and length of seizures, ‘observations of his behaviour during and after the attendance of the part-time student and classroom observations of behaviour over a whole day at set intervals. In terms of staff development, Ms Forrest advised not to touch Joshua, as he was very defensive; give him space within the confines of the courtyard or classroom, as being crowded or having too many people telling him what to do is a trigger, and understand that he does not need to go to the classroom because he has no need to socialise. ‘Suggested program changes were to allow Joshua space and time to be himself when stressed, providing him with as many schedules as possible to cover his whole week; providing him with clear statements as to what was expected of him and maintain consistent vocabulary and speak clearly and calmly but very firmly when telling him of any changes. Ms Forrest noted under the heading “environmental changes/classroom changes/physical changes”: “Sudden changes stress Joshua a great deal, loud noises made by other people especially crying or moaning or musical noises from the shared bathroom area, variation of epileptic seizures and new staff in the staff room, especially staff who want to unnecessarily want touch him." Ms Forrest suggested interpersonal skills were: “When calm, Joshua was highly sociable, friendly and encouraging to others. He has a tendency to dominate in a verbal interaction situation, is intolerant of female students, verbal noise, is @ poor judge of his own 19 JUDGMENT Canta v State of Vietoria ° o 107 108 109 110 m1 112 113 7200 T191 T193 T198 Voc:AsiLMins personal space and does not like being touched other than holding hands.” No playground changes were recommended, with Joshua’s arrangements remaining the same going into the courtyard at playtime and it was noted that crisis management was outlined in the strategies above. In June 2007, Ms Forrest wrote to the plaintif's paediatrician to allow him to understand Joshua's aggressive behaviour under the influence of medication.4? She advised the triggers for Joshua were either when the group activity was beyond his ability or when noise or activity level was too much. Ms Forrest sent a further letter later that month, enclosing the April 2007 plan. She advised of increased hostility and aggression when Joshua took the medication Keppra. This paediatrician, Dr Smith, wrote to Ms Forrest about the plaintiff's medication issues in April, June and August 2008.5? Ms Forrest kept a running diary of Joshua's behaviour which might be relevant to his epilepsy during the 2007 year. The material was contained in star charts. These should have been provided to a new teacher." Ms Forrest confirmed the charts contained a number of examples of Joshua kicking out.5* She agreed he had a propensity to kick out. He kicked her during June to August 2007 and was quite physical during that time, but that was still manageable within the classroom. On 8 June 2007, Ms Forrest recorded: “Josh started to hit me and kick me. | deflected some hits but got hit on the face and hand. Cut hand. Bruised face.” 20 JUDGMENT Canta v State of Victoria 114 115 16 117 118 = T199 1232 7212 VeCASILMIAS After these type of events, at the end of the day, Ms Forrest would say to one of the principals, this has been happening, so they were kept in the picture.®° The star charts were kept to record epileptic absences (“blanking out’), not to document every act of aggression by Joshua, Thus, whilst Joshua was prone to kicking people, and she took off his shoes to avoid it, this was not always recorded in the charts. Between 14 March and 10 September 2007, there were around forty physical events involving Joshua noted on the star charts. There were numerous occasions when Joshua kicked or hit other students. One such example was on 14 August 2007 when M Forrest noted: “Josh lay back and kicked Michelle.” In cross-examination, Ms Forrest confirmed the following documents were contained in Joshua's file:55 * A Monash Medical Centre psychological assessment report in July 2005 When Joshua wes aged two-and-a-half noted he was referred for an assessment to determine if his behaviour pattern was characteristic of autism. « — Report from Biala Cranbourne Inc dated § December 1995 detailing the plaintiff's progress in its program, then aged nearly three. * Psychological assessment report dated 3 October 1997 completed when Joshua was four years and nine months for a review of autism and cognitive assessment. It was noted that Joshua had a sensitivity to noise. Ms Forrest was certainly observant of this as Joshua's teacher. Little- 2 JUDGMENT Canta v State of Vietoria % T214 7215 1216 1217 7220 VOC:ASILWIAS children noise and high-pitched squealing noises did not work well with him.5° The report set out the importance of consistent behaviour management.®” Itwas very important to Joshua that he and other students she taught had a structured environment.5® A confidential student enrolment form for 2002 for the Cranbourne Specialist School. A specialist services assessment report completed by Human Services in January 2002 when Joshua was aged nine, with reference to tantrum behaviour involving property damage, physically aggressive behaviour towards younger children and more physically vulnerable individuals, Ms Forrest thought these issues remained very relevant to Joshua in 2007, Also noted was aggressive behaviour before boarding and when travelling on the school bus which may involve kicking, hitting and biting others. An intervention plan was suggested, including use of visual aids and development and implementation of a social story to explain expected behaviour when in the community, incorporating a coping strategy for dealing with frustration. It was recommended, inter alia, that Joshua be taught to cope with transitions (problems at the start of the year).®° A Department of Education, Employment and Training Program for 22 JUDGMENT Canta v State of Victoria 6 7222 ee T224 Vec:ASMMAs Students with Disabilities and Impairments 2002 - Intellectual ability psychologist’s statement. The plaintiff was aged nine years and eight months. it was noted his current presentation involved being prone to violent and unpredictable outbursts at school and required heavy supervision, both in class and outside. Ms Forrest thought this behaviour was out of character. It was so unusual and it turned out to be due to the medication." Untitled 2003 description of Joshua: “Doesn't cope with change and likes to follow a strict routine. When he’s upset he'll usually run over to another student in the class and kick or hit them.” Itwas suggested if Joshua attacks someone else in the classroom ~ “First try to move him to an area where the other children are safe, then try to talk to him. if the behaviour escalates hitting, kicking and screaming, take off his shoes. If necessary remove the other children, tell him he will have to have a time out and put him into time out." Ms Forrest explained the only time this happened was in the medication phase.® Cranbourne Specialist Schoo! — Program Support Group Meeting July 2008 relating to Joshua Mason. Itwas noted that Joshua was very settled and a lot happier and the violent outbursts had decreased. In terms of follow up, it was noted Joshua was still occasionally hurting the younger children, so he would be happier when playing on his own. 23. JUDGMENT Canta v State of Victoria os rs or o 119 120 121 * Marnebek Physical Restraint Record Form dated 16 November 2005. Itwas noted Joshua was restrained intermittently for 20 minutes. He was in the courtyard calling out to another student trying to stirhim up. He was requested to stop and proceeded to use inappropriate language and gestures. Before and during the incident, he was very aggressive, kicking, scratching, punching, hitting, spitting and using inappropriate language. Ms Forrest explained physical restraints were always a very last resort.®? Mr Pratt Mr Pratt was aware Joshua played alone at recess in the courtyard because lots of people and lots of things would elevate his anxiety levels.** Mr Pratt was aware that Erica had a high-pitched squeal. He agreed that could well create an immediate and obvious problem for Joshua.® He agreed leaving her in proximity to Joshua created an immediate and obvious problem.®” Ms Winfield Ms Winfield confirmed a strategy to deal with Joshua's behaviour in the classroom was to separate him from other students on a special mat.®* Findings 122 123 7230 T400 | have reached the following conclusiosn on the basis of the above evidence. Itis clear the defendant was well aware of Joshua's propensity for violence and that special steps were taken on an ongoing basis (the courtyard/mat) at the school to deal with his escalation of violence. 7398, 1405 T450 T405 1454 VeC:ASLMAS 24 JUDGMENT Canta v State of Victoria * 2 ~ * VOCiASILMAS. The class handover 124 128 126 127 128 Tar 795 151 152 The Plaintiff Having said she did not mind what class she took, it was undecided at the start of the 2008 school year who was to be in the plaintiff's class. What she would have been teaching may have been confirmed in November 2007 but made definite the following January. The plaintiff agreed there was some discussion with Mr Pratt in late 2007 leading to the purchase of IKEA furniture for her 2008 classroom. All the classrooms were being painted.” On starting the new year, the plaintiff had just the two girls in her class, Erica and Michelle.” The plaintiff did not have their full files, She was provided with notes about their medical requirements and understood she would be working with an occupational and speech therapist to help with their communication skills. She studied those documents, which were pretty much about the girls’ verbal skills and their need for nappies. She could not recall who provided this information.” Before having been shown the February class list,’? the plaintiff thought Jacob and Joshua came to the class some time after the start of the school year, with the latter attending infrequently because of medical issues” and attending four days in total before the said date.” When shown the February class list, the plaintiff agreed she was mistaken and that Joshua had first attended her class on 30 January. She may have mistaken First produced during cross-examination 152 756 25 JUDGMENT Canta v State of Victoria 7 7% ~ o 129, 130 m2 1131 53 54 T27 Vec:ASiLMIAS him for Jacob.’* When Joshua turned up, she knew his name and that he had autism.” There was no handover of Joshua. The plaintiff was just told by a principal staff member he was coming.”® No documentation relating to Joshua was provided to her.’? She found out that he was epileptic after he had been put in time out after the assault on the said date.® Three days before the assault, the plaintiff emailed Katherine Weston, the assistant principal, on 11 February 2008 at 10.21pm, re “I needed to say, so please listen” The plaintiff commenced the email by stating: “You are not the easiest person to talk too (sic) but as | no longer care if lam asked to move on because of being out spoken, | am sending you this my thoughts. Ithas been a difficult start to 2008 with many unsolved problems from last year marring the positive New Year. Marnebek has grown quickly and some have yet to develop the necessary time to familiarise themselves with every aspect of individual need and concer. So let me give you some examples. In 2007 our SSO Rosalyn was in a High Needs class with out adequate leadership for 6 months, this left her unable to effect change or even to state the need for change as she was employed on a parttime basis. The teacher, a casual relief was not quaified in special education and was therefore unable to know what change,(sic) were necessary so things were allowed to continue. As @ consequence Rosalyn did not get tea or lunch breaks for most of 2007 as this depended on the student's ability to be willing to leave the Classroom and to be safe in the play ground (Students are physically much stronger and bigger than staff) and other staff willingness to step in if necessary was less than willing in fact no one asked Rosalyn about her tea breaks or if she was even getting them. If the students had a problem in the play ground w{hjether it was hitting or soiled pants, it was Rosalyn who was expected to give up her much needed break to aid or facilitate the student. The reason being, ‘The student will be better for the person they are use{d] to’ (Not so). The fact that that meant that only two people could or should be interrupted for these 4 students suited everyone... everyone except the two who had their 26 JUDGMENT Canta v State of Victoria tea break constantly interrupted. This system has worked so well for everyone else that we have started 2008 just the same. When schools grow ecological surveys become very important because, you need to know the impact of a decision, not just at the top level but also at the student, teacher and classroom level. To know this you must know what is happening at each and every level through good reporting (don’t shofojt the massager (sci! messenger), you know this through your leaders and co-ordinators. This is the ecological survey for my class:- 1* with much deliberation | work with the therapist to develop a program. | know that my class and I depend on the speech therapist and the ‘occupational therapist. | cannot learn to communicate with my student without Amanda showing me how!!! | do not know how to encourage a student to get up with out hurting them when they resist me with out Angela showing me how, after witnessing the coniext of the need and demonstrating a solution 2* an uninformed change to my time table to satisty a need else where has cost myself and risked my student's learning potential 3* Iwas told | have no say in this change and indeed I have not. | am not permitted to state how this will affect my students. Instead | am told that itwill not effect me so why | am (sic) being difficult This is how it affects my class and me. a) The students whom are over wheimfed] with being back at school and having a new teacher, classroom and classmates have to be forced out and into yet another room for Art. (believe that they are not always having a good day and force is most often necessary) b) The time slot now taken up by Art was Amanda's time for speech with the students, although she can go along to Art and get the students, They miss out on Art and you may not think this important but | believe them entitled to an equal curriculum, c) Most importantly | as their teacher can not learn how to ‘communicate with my students by watching and learning from Amandall®" This now affects every thing they learn and all | do with them, how | teach them to communicate the wants, needs, and desires!!! While you continue to make decisions with out the classroom teachers or a Full awareness of the class time table how are you aiding program? Ecological survey inform decision making and give teachers a professional voice about their program. Yours sincerely 1 T64—the plaintitf could not recall if she was the speech therapist or occupational therapist 7 JUDGMENT VoC-ASILWAS Canta v State of Victoria 2 e os VOC:ASILWAS Macy Canta,” (sic) 131 The plaintiff sent this email because she was concerned that there were many disruptions in trying to settle her students and learn their natures and needs. She did not believe Ms Weston replied.® 132 The plaintiff explained it is always a threat in teaching that if you do not do as you are told and do not comply, you may be asked to move on. The job was by no means secure:®3 “Disagreements with the principal may lead to less help or less desire for you at the school."* 133 The plaintiff did not mention difficulties with Joshua in that email, as she had done so verbally and she did not want to appear to be complaining. The email supported what she had been verbalising. She did not mention she had been assured Joshua would not be in her class because “it was her word against theirs”. 134 It was definitely not true that the plaintiff did not mention Joshua, as she was not having any problems with him: “Anybody could see that people would have trouble with a child with his needs and trouble," 135 The plaintiff also mentioned problems with the handover in her email to Mr Pratt of 21 February 2008, noting: “It has been very hard {0 take over in a classroom where no follow up of ‘students needs and habits has taken place."** Te5 T149 150 T1581 Full text at paragraph 267 28 JUDGMENT Canta v State of Vietoria 8 on @ 136 137 138 139 140 144 7321 1323 7329 7330 Tadd 7348 VOC:ASILNAS. Professor Roberts Professor Roberts was critical of both the documentation that was provided and that which was lacking on the handover of Joshua. Inher view, if there was challenging behaviour, a behaviour support plan should be done on an ongoing basis and be constantly evaluated and reviewed." it would be very relevant to have an up-to-date behaviour support pian, given concerns about Joshua's behaviour after April 2007, because otherwise there was no way of knowing how effective the plan had been.®® Professor Roberts was critical of the 20 April 2007 Behaviour Support Plan because there was no comment about the frequency of Joshua's behaviour escalating and she wanted more information.®? Ms Forrest did not give any specifics around the “triggers” with Joshua’s behaviour. If that level of detail was lacking, it could not be shown the strategy that had been put in place was working, and that incidents had been reduced — “There was no substitute for careful objective observation’. Professor Roberts agreed the behaviour support plan system as described by Ms Forrest was a proper procedure. It was also a sensible thing to review a plan if it simply was not working.®* Professor Roberts would have expected a new teacher to have read the documentation that was available. She would have expected an end-of-year report, and reporting on the Behaviour Support Plan, which she did not have any record of. 29 JUDGMENT Canta v State of Victoria 142 143 144 145 146 7320 1349 7349 7322 7328 7345 aggaes VecASIMIAS ‘There was no documented report of evaluation of the independent learning plan at the end of 2007 as would be expected. Further, Professor Roberts thought it was unrealistic for Joshua to be able to recognise when he needed a sensory break by using the PECS folder as set out in the December Individual Learning Plan.% The December document was an Individual Learning Plan, not a report on its success or otherwise. It would depend on the casual relief teacher whether she completed that document, and the fact Ms Forrest went off before the end of the year probably explained why there was no such end-of-year report.® Ms Forrest's use of the star charts, monitoring Joshua's medication, would be a very appropriate thing for a teacher to do. You would usually summarise the charts and might represent them on a graph to make some sort of sense of them and then decisions could be made on the basis thereof. Professor Roberts disagreed that in her letters to Dr Smith, Ms Forrest summarised the contents of the star charts. They were very general statements about the noise or activity level, not its actual level. She would want to know more specific levels so she could anticipate what might set off Joshua in the future.®7 Professor Roberts would certainly have expected to see the star chart data more systematically displayed and analysed to back up changes in Joshua's behaviour. It would be difficult to get a clear picture with the data presented as it was. 30 JUDGMENT Canta v State of Victoria ‘0 we 03 105, 147 148 149 150 151 182 1333 1387 7360 7384 7361 1378 7361 VOC:AsMIAS. Professor Roberts agreed that if the system was operating properly, the documents described by Ms Forrest, together with Behaviour Support Plans, should have been available when a fresh teacher came into a high needs class. Mr Pratt The school would put out an expression of interest amongst staff in Term 4 as to what area they might like to work. Whilst he could not recall a conversation with the plaintiff about her class allocation for 2008, her classroom had been painted and furniture purchased at IKEA after the end of 2007.1 Mr Pratt thought it was not possible the plaintiff would be given just two girls and later joined by two boys. This was not what he thought might happen. There would be no surprise for the teacher on day one."°" Mr Pratt agreed Jacob was a late addition to the plaintiff's 2008 class, having first attended on 7 February 2008."% Mr Pratt could not recall the plaintiff advising him she did not want Joshua in her class. If she had raised that issue, they would have discussed supports she could be given." Mr Pratt would be very surprised if no documentation relating to Joshua was available before the start of the academic year, as that was not the usual process.’ There would have been the leaming plan and positive behaviour support documents."° Behavioural management plans would be done 34 JUDGMENT Canta v State of Victoria sa 08 0 153 154, 165 186 T400 1399 7376 7430 Taa7 VOCASILMIAS regularly.'°° It was possible that assessment of Joshua may have been difficult with a casual relief teacher at the end of 2007."°7 Atthe end of 2007, once the 2008 class groups were finalised, there would have been some transition discussions around people who currently worked with those students and those who may work with them the following year the class teacher, the teacher assistant, the specialist, the speech therapists and the psychologists who worked in the school. There would have been a whole raft of people — there would have been the opportunity for discussion. Individual plans written during the year and also assessment outcomes for those students would have been available.'°® If the plaintiff's complaints in her email to Ms Weston of 11 February 2008 were valid, Mr Pratt agreed that demonstrated a lack of smooth operations for a teacher new to high needs in terms of developing communication skills with her students. He also agreed that email would be an alert to the principal approving the excursion as to the capacity of the teacher to fully engage and understand the sorts of actions that may provoke Level 1 to Level behaviour. He would be interested in knowing what outcome there was though. Mr Pratt thought he would have most likely asked someone about the matters raised by the plaintiff in her email of 21 February 2008 relating to the handover. He would be very surprised if the situation was as the plaintiff described.11° Mr Pratt thought the plaintiff was wrong about there being no handover. There would still be consultation between therapy staff, including Ms Winfield, who 32 JUDGMENT Canta v State of Victoria had worked with the students previously. He could not imagine putting someone ina room and saying "well, work it out’.1"# Ms Winfield There was no evidence from Ms Winfield as to the circumstances in which Joshua was put in the 2008 class, although she had been the aide in his class the previous two school years. Ms Forrest Ms Forrest explained that if the system was working properly, a new teacher would be given all behaviour management notes, notes of medications, learning programs and additional notes to make life in the classroom workable.""2 Behaviour management plans were worked out mostly by the class teacher in conjunction with the parent, the assistant principal and also classroom assistants.'"? Joshua's plan did not have to be amended because violent behaviour was not normal for him and was related to his medication. Post the medication review in 2007, Ms Forrest would have assumed someone would have updated Joshua's April 2007 Behaviour Support Plan but she did not know what happened." If she was a new teacher coming into the school in 2008, Ms Forrest would skim read notes and only listen to the previous teacher if it was very significant. She liked to make her own observations because of her experience, and marry up all these factors.""® New classes were usually allocated around the beginning of December. It was auite okay to watch your potential students and talk to their current teacher."17 187 198 159 160 161 162 m T4286 12 -T179-180 we 7196 ™ 1197 ne 7239 we 7239 Ww 7265 VeCcASILMIAS. 33 JUDGMENT Canta v State of Victoria 18 10 VeC:ASiLMIAS Ms Fletcher 163 Ms Fletcher confirmed the requirement of each teacher to write a behaviour management plan for each student, usually in conjunction with other relevant therapists. These documents were reviewed as necessary, such as when a child’s behaviour changed. The documents were usually kept in the classroom, together with medical records." 164 Star charts which were also kept were records of a student's positive behaviour. 1465 It was really important that documentation be handed on to a replacement teacher because — you do not want to re-invent the wheel. If a student had issues or a particular plan, you pass that on so the next teacher knows the starting point."""9 Findings 166 | have reached the following conclusions based on the above evidence. 167 | am not satisfied that there was an adequate handover of Joshua at the start of the school year. There is no evidence of what, if any documentation the plaintiff was provided with. The 2007 behaviour support plan had not been updated at the end of that year. 168 | The absence of a permanent class teacher for Joshua at the end of the 2007 year after Ms Forrest went off on stress leave in August that year, is a likely explanation for this state of affairs. The Plaintiff's high needs teaching experience/classroom dynamics at the start of the school year The Plaintiff 169 The plaintif's 2008 class was her first high needs class. The previous year, she had been teaching a class of nine much higher functioning female special 1464. 7464, 34 JUDGMENT Canta v State of Victoria a m 170 m4 172 173 174 T129 1123 1378 1407 ‘1407 VeCiASILMIAS needs students in a different area of the school."2° Her degree focussed on curriculum and did not include any training as to how to deal with high needs students.12* Jacob, Michelle, Gaby and Joshua had been in Ms Forrest's class the previous year, and Erica was added to their number in the plaintiff's 2008 class. Mr Pratt High needs “kids” were coming into a whole new environment at the start of the school year. They had come back from holidays so there would have been discussion and planning around a smooth transition for them back into ‘school. 122 Mr Pratt agreed it was an unsettling time for students at the start of the year and there was very little time for the plaintiff as a high needs teacher to understand the group dynamic," Mr Pratt thought it was the first time the plaintiff had taught children at this level, He agreed that with the school year only two weeks old, there was very little time at all for a teacher of four high needs students to understand the group dynamics of such a class. He also agreed, in those circumstances, there was a need to keep a closer eye on the plaintiff than was the case with a more experienced teacher like Delia Forrest. 124 Mr Pratt denied the plaintiff was relatively inexperienced to take the excursion of four high needs students with only one aid. She had experience working with special needs students at Emerson and in taking her class on the excursion, she was confident that she could work with the kids and provide for them in an 36 JUDGMENT Canta v State of Victoria 175 176 W7 178 179 ws Tait ‘7300 ww T347 ws T299 me 7360 VecAASMWAS adequate way. 125 Professor Roberts. Generally, at the start of the school year, especially if there was a change in the makeup of the class and staff, even with regular excursions from the year before, they would need to be approached with caution to make sure there were not various changes that might cause a problem.*2° Professor Roberts did not know until she saw the class list during the hearing that two of the four children in her 2008 class were in the same class the previous year. That was possibly of relevance. She agreed Joshua would have had a degree of familiarity with them. That might serve to relieve stress or dampen the stress.127 Having been advised that Joshua had been regularly going bowling for the last two years and the Bowl was closed to the public when school students attended, Professor Roberts added: “However, the inclusion of a student that would squeal, setting Joshua off, would obviously be a problem, and his level of irritability and stress could still be elevated, the squealing being a trigger.""* Professor Roberts considered the fact the new member of the class was Erica, and she was the one to whom Joshua aggressively interacted, was of some relevance to causation, as was the fact that Erica had a high-pitched squeal Given Joshua's background, this was a known stressor.129 The fact that half the class was the same, and bowling was an activity Joshua was familiar with, would be factors which she supposed predisposed for success, but then you have some change with new classmates and one of whom is known to produce sounds that distress him. So that would be a known 36 JUDGMENT Canta v State of Victoria 20 32 103 135 180 181 182 183 184 7380 7220 7258 7220 T221 7450 VeCASILWAS stressor. So you would certainly think very carefully about taking them out of ‘the school with that other student." Ms Forrest Everybody with autism finds change difficult, particularly change in terms of the start of a school year. The change in the make-up of the classroom could be difficult." Ms Forrest had not come across very experienced teachers who found class. dynamics a problems in early days.'® However, there would be a variation in teacher quality as to how quickly the teacher would be in control of the environment. With the difficulties at the start of a new year, it would be a challenge with a new teacher and could be so with the makeup of the class." Ms Forrest agreed, with a different class make up, Joshua would have to cope with different behaviours. He would have to cope with a new teacher. These would be triggers for him to go to a higher level of behaviour, but Level 3 was only reached during Joshua’s medication phase. Ms Winfield Ms Winfield recalled Joshua used to get upset with Erica's screeching. This was gradually learned as the first term in 2008 progressed." At the start of the 2008 school year, the plaintiff had not had any high needs teaching experience, unlike Ms Forrest. The dynamics at the start of a school year, with a new student being added to Joshua's 2007 class and also a less experienced teacher were relevant factors which should have been considered by the school in allowing the excursion to take place. 37 JUDGMENT Canta v State of Victoria a7 08 40 “3 Joshua's behaviour in 2008 prior to the assault 185 186 187 188 189 190 Tot TH7 T103 Tot T101 T102 7442 443 VOC:ASILMIAS The Plaintiff Joshua kicked other students on a number of occasions. This would have been witnessed by Ms Winfield at times.1°° The plaintiff discussed this issue with Mr Pratt and he told her Joshua was to stay in her class. She did not mention this complaint in her emails because of concern for Joshua's privacy. "97 The plaintiff asked for Joshua to be moved from her class to a class of able- bodied students who could move away from him. However, Mr Pratt told her he was satisfied with the class arrangements. The plaintiff felt disempowered by his response but she did her duty as a teacher." The plaintiff told Kathy Weston and the occupational therapist about Joshua kicking Erica. They told her they were working on “this behaviour problem’. 12° The plaintiff was told to make sure Joshua’s shoes were removed." She and Ms Winfield took other steps. They would stand between Joshua and they would occupy him or “distract him from his intent’, Because that was not working, the plaintiff asked for Joshua to be removed from the classroom. Ms Winfield Ms Winfield, who had previously been the aide in Joshua's class in 2008 and 2007, had no concerns about the make-up of the 2008 class. She got on pretty well with Joshua and used to love to read to him.142 Ms Winfield could recall Joshua "kicking out” in 2008 on at least two occasions after the assault.'*° Later in the year, he kicked Erica in the head whilst they 38 JUDGMENT Canta v State of Vietoria were in the courtyard. She could not recalll if there was a report made of that incident.44 Mr Pratt 191 Mr Pratt denied any complaint having been made by the plaintiff about Joshua being put in her class or a suggestion that he would be better off with a male teacher. He would have told the plaintiff supports would be given" rather than Just removing Joshua from the class."4° 192 Mr Pratt could not recall the plaintiff complaining about any student. if she had told him of Joshua kicking, he would have investigated it further and involved a safety plan.” Taking his shoes off was not a management strategy." 498 Mr Pratt denied there was ever the requirement for one staff member to be allocated to Joshua nor did he discuss this with the plaintiff."4° Findings 194 | have reached the following conclusions on the basis of the above evidence. 195 | accept the plaintiff's evidence that she had complained of Joshua’s behaviour in 2008 prior to the assault. There was no explanation why Kathy Weston and the occupational therapist to whom the plaintiff complained in this regard were not called. The Plaintiff's career plans in 2008 — play therapy 196 wi T4654 ws 7360 we 7384 7365 we 7365 7380 VeCASILWAs This issue is of relevance because counsel for the defendant submitted the plaintiff did not intend to stay at the schoo! during 2008 because of her study plans and on that basis, she did not avall herself of documentation relating to Joshua that would have been provided to her on the handover. 366 30 JUDGMENT Canta v State of Victoria 197 198 199 200 The Plaintiff Prior to the said date, there were a number of emails from the plaintiff to Mr Pratt in which she advised him of her intention to study play therapy in the 2008 school year. On 12 January 2008, the plait advised Mr Pratt she had unsuccessfully looked for work in another field and thus, she would be with the school again this year: “Hello Denis, I hope that you have had a restful break, | have rested well and wish the rest could last forever, alas here we are about to embark on yet another year. Although | have looked for work in another field, | have not been successful which means that | shall be with you again this year and can only hope that you have painted the classroom white and that there is none of that depressing grey left. Somehow I doubt that this is the case... right? hope to catch up with you about my future direction (sic) and hope that | ‘am able to be of better service to the school community this year than the previous year. Bye for now Macy Louise Canta," The plaintiff explained that she was always hoping to be of better service and hoped to have gained from her previous experience and serve better in her role. She denied issues with her partner interfered with her ability to perform her work duties. Whilst she had to take out an intervention order against him, she was able to separate that issue from school. School was a refuge — that was “ jer] wonderful place”. On 15 January 2008, the plaintiff again emailed Mr Pratt. She advised she had been in contact with Lisa about her play therapy study plans to improve her teaching skills and to “refresh her spirit”. 1 DCB 127 wr T1442 VCC:ASILWIAS 40 JUDGMENT Canta v State of Victoria 201 202 203 204 205 206 207 me 146 VOCASILMAS. The plaintiff advised she had applied for a twelve-month position as “Head of Play Education’ at Monash Medical and, if successful, she would like twelve months leave without pay. She asked Mr Pratt to be her referee for that position. On 16 January 2008, the plaintiff also emailed Katherine Weston advising her of her play therapy job application and requesting she be a referee. The following day, Katherine Weston advised she would be happy to do so. On 16 January 2008, Mr Pratt emailed the plaintiff advising of the procedure for taking leave without pay. He wished her luck with her application and advised he would be happy to act as a referee. He asked she keep him informed, as he would need to make the necessary arrangements so the students could be catered for. On 19 January 2008, the plaintiff thanked Mr Pratt for his “agreeable nature” and advised of the leave dates if her application was successful. On 23 January 2008, Mr Pratt requested by email that the plaintiff advise of her intentions to take leave without pay by 25 January 2008. He pointed out to her that he must act to ensure that the students have a suitable teacher as from day one and he needed at least some time to arrange this should she not be returning this year. The plaintiff agreed that at the time the school year started, she still did not know whether she had been successful in her application. © ‘On 11 February 2008, the plaintiff emailed Mr Pratt. “Subject” RE: leave Good morning Denis, I was told last week that | am always a half full cup kind of person, at first I was hurt and angry at this statement...and then | acknowledged] that a JUDGMENT Canta v State of Victoria 208 209 240 an 447 T1490 ws T450 we 7374 Voo:ASiLMAS they were right. However, this statement is more a reflection of the emotional and physical toll of this job than my inadequacy as @ teacher. There is only isolation for the teacher in this classroom as everyone sees the problem but no one wants it to be theirs My leave (long service) is still 8 months off and | cannot wait until then, | am not sure how to apply formally for leave without pay and shall attempt to draft a more formal request later this week. The dates | shall wish to request will commence as of the 7 of April until the 19 of December 2008. | hope that you find this solution to my complaints adequate. Ms Macy Louise Canta.” At the time she sent this email, the plaintiff was having a very bad day. She expressed problems and obtained no assistance. She did not mention Joshua in that email because it was awkward with new students’ names and she did not want to infringe his legal rights. The email was part of a conversation that had taken place verbally. The plaintiff denied this letter was a resignation. She had every intention of continuing at the school. If she did not get the position she was going to do voluntary work in play therapy. This was a tentative email to her principal to advise him of her intention. As of that date, the plaintiff loved her job but she did not love it every day. 4 That day, the plaintiff also emailed Kathy Weston. 155 Mr Pratt There was certainly an indication that the plaintiff was looking for other work in January 2008. If she had found other work, a short-term replacement would have to be found, then the position would be advertised. The class would have remained as a group. "°° 42 JUDGMENT Canta v State of Victoria ws 18 00 6 212 After the plaintiff's 15 January 2006 email, Mr Pratt would have started a discussion at least with most likely Kathy Weston; however, the school was then closed."*” 213 Mr Pratt was happy to act as a referee, as he set out in his email. There certainly was no negative relationship between himself and the plaintiff. He wanted people in the school who wanted to be in the school. 8? 214 Mr Pratt confirmed the cut-off point was 25 January 2008. He would have been wanting to know by then whether he had to get someone to take the plaintif's class or not.15® 218 From the plaintiff's email of 11 February 2008, he thought the plaintiff was intending to give him a formal request for leave without pay."® He may well have put in place a procedure to replace her because that was a fairly clear indication she was intending not to be at school." Findings 216 [have reached the following conclusions on the basis of the above evidence. 217 — Whilst the plaintiff clearly intended to advance her qualifications by undertaking this further study if it was available, | am not satisfied this desire distracted her from participating in a proper handover of Joshua. As stated earlier, | accept the handover was inadequate in any event. THE BOWLING ACTIVITY 218 1372 7373 1374 1374 1378 VOCASHMIAS A trip to the Bowl was an “excursion” covered by the Education Department Policy to which the Marnebek School Excursion Policy ("the School's Excursion 43 JUDGMENT Canta v Stale of Victoria Policy”) also applied.1® 219 In the Education Department Policy, excursion was defined as: “.. an activity organised by the school whereby students leave the school grounds for the purposes of engaging in educational activities.""° 220 The following are relevant extracts from the Policy: “4.4.1 Liability A teacher owes students a duty to take reasonable steps to protect them from any injury that the teacher should have reasonably foreseen (see 46.1.2). This requires teachers and principals not just to react to situations as they arise but to engage in appropriate risk management to reduce the risks of injury. Principals should implement risk management processes for identifying and controlling hazards and risks (see 6.14). They should also ensure that sufficient members of staff are trained in first-aid to an appropriate level of competency to enable first aid to be given when necessary (see 45.1.1). 4.4.1.1 Reporting accidents For general record keeping purposes, it is important that details of accidents at schools or on excursions be recorded on the injury management system on CASES/CASES21. Principals may also with to ‘obtain further information such as statements from witnesses and retain these on file, with a notation on the statements that they are to be used for the sole purpose of defending any potential or actual legal claim. Schools are required to immediately notify the Emergency and Security Management Unit of any incident that impacts on the safety or wellbeing of staff, students or visitors. Telephone 03 9589 6266 for 24 hour service. 4.4.2. School excursions 44.2.1 General policy Principals, who are responsible for the conduct of all excursions, must ensure that full records are maintained. If accidents or injuries occur, comprehensive reports must be completed and riled promptly (see 4.4.1.1), Principals, teacher's,(sic) school councilor’s (sic) and others involved in school excursions, including camps and adventure activities, must anticipate the possibility of litigation following an incident or injury. They must be prepared for a detailed examination of all their actions, their planning and the curriculum role of the particular activity. v2 1300 —Mr Pratt we 44.24 44 JUDGMENT VOC:ASILMAS Canta v State of Victoria Principals must ensure that adequate pre-excursion planning and preparation, including the preparation of students, takes place. 4.4.2.2, Approval for excursions Prior to the conduct of an excursion, the approval of the school counsellor or the principal (see below) must be obtained In approving the excursion, consideration should include: + the contribution of the activity to the school curriculum * the adequacy of the planning, preparation and organization in relation to: © the school policy © the guidelines and advice provided by the Department of Education and Early Childhood Development and in the Safety Guidelines for Education Outdoors website © information provided by community groups and organisations that specialise in the activity proposed * appropriateness of the venue ‘+ the provisions made for the safety and welfare of students and staff + the experience and competence of staff relevant to the acti being undertaken + the adequacy of the student supervision (see 4.4.2.6) 44.2.2.2 Principal approval The principal is responsible for the approval all single-day excursions {other than those referred to above that must be approved by school council) and the staff involved that are employed by the Department of Education and Early Childhood Development. 4.4.2.2.4 Selection of venue The selection of the venue chosen for a camp or excursion activity must be based on sound risk management principles. Camp or excursion venues should be assessed for their inherent safety and suitability as well as for the risks associated with the activities that may occur during the ‘camp or excursion. 4.4.2.3 Excursion emergency management The emergency management process in schools should extend to and incorporate all excursions. ‘The four components of preparedness, prevention, response and recovery need to be addressed (see 6.15.3).” “Legal Liability and associated matters 45 JUDGMENT VOCASILWAS Canta v State of Vietoria 6.16.1 Duties owed to students 6.16.1.1. Specific duty of care In addition to their professional obligations, principals and teachers have a legal duty to take reasonable steps to protect students in their charge from risks of injury that are reasonably foreseeable. Until recently, the duty was confined to the geographic area of the school, or to school activities, or to activities occurring outside the school where a student was acting on a teacher's negligent instructions, for example, if a student was injured at home while constructing a bomb as part of a school assignment. The duty also applied to situations both before and after school where a teacher had ‘assumed’ the teacher pupil relationship, for example, if at 8.00 am in the morning before school starts, a teacher issues instructions to students on how to behave. Although the general duty is to take reasonable steps to protect students from reasonably foreseeable risks of injury, specific (but not exhaustive) requirements of the duty involve: * providing adequate supervision in the school or on school activities + providing safe and suitable buildings, grounds and equipment. The teacher's duty is greater than that of the ordinary citizen in that a teacher is obliged to protect a student from reasonably foreseeable harm or to assist an injured student, while the ordinary citizen may choose to do nothing in a similar situation. This legal duty is imposed on the individual teacher, the principal and other staff who have students in their care, though clearly the nature and extent of responsibility will vary according to the particular circumstances. For example, an individual teacher is under a duty of care in performing supervisory duties, and the principal is under a duty of care to provide the supervision roster and see that itis implemented. Recent developments In 1996, a non government school in NSW (re Koffman’s case) was found liable for an injury to a primary student at an unsupervised bus stop approximately 350 metres from the school and located outside a government secondary school. In this case, the non government school admitted in the proceedings that it would have been appropriate to provide supervision. In 2001, a school in NSW (re Graham v NSW [2001] NSWCA 248) was found not liable for injuries to a student with a disability who was hit by a motor vehicle when crossing a busy road a kilometre (sic) from school, when this Part, a volunteer is an individual who provides a service in relation to community work on a voluntary basis. 16.16.3 Official duties: teachers Official duties are undertaken in the course of employment and are 46 JUDGMENT VOCASAMAS Canta v State of Victoria 224 222 wee T3901 VecAsILMIAS ‘outlined in Order No. 165 of Teaching Service (Conduct and Duties) Orders 1998. They include all curriculum activities such as: + classroom teaching * supervision before and after school, at recess and at lunch time + sport supervision, supervision of sports teams in interschool contests and in other competitions approved by the school council + supervision of visits off the school premises, éxcursions and camps. All official duties, including those listed above, are carried out at the direction of the principal or with the principal's knowledge and approval.” Excursions fell into two categories: regular weekly activities and one-off special case activities.1* The School's Excursion Policy provided, inter alia: “Excursion Policy Implementation Excursions will be comprehensively planned to maximise the safety of all participants and have a specific educational aim. © Plans will be submitted to the Principal for approval before notification to parents © Excursions will be designed, giving due considerations to the students experience, age, physical and intellectual and intellectual ability. © Teacher/pupil ratio while endorsing DEECD regulations will depend on the particular needs of the group and the activities being undertaken and will be determined in consultation with the Principal/Assistant Principal. © Staff.will carry medical and emergency information at all times © Teachers will complete a Confidential Excursion Form prior to attending an excursion. The original form will accompany the Teacher to the excursion. A copy of this form will be filed at the office. This form is to be endorsed by the Principal/Assistant Principal. 47 JUDGMENT Canta v State of Victoria © Students who are at risk of not being able to participate in an excursion due to un-reliable behavior will have their parentsiguardians notified. The decision to exclude a student will be made by the Principal/Assistant Principal in consultation with the classroom teacher and the Teacher in charge. ‘© Amobile phone and first-aid pack will be taken on all excursions.” 223 There were @ number of purposes for bowling excursions. It was almost a standard procedure for special schools."® It was part of the community immersion to take high needs children to enable them to participate in “real” life experiences." It was a turn taking exercise.” Bowling taught a lot of skills — communication, exercise and socialising. 1° Professor Roberts 224 Professor Roberts noted it was important to formulate goals, specific things you are trying to achieve when taking an excursion. She could not find the goal for the excursion from the documents provided to her.‘ A goal was important because one's purpose in education of any students is for them to learn, otherwise you would be “child-minding."17° Permission forms 228 There is no dispute that there were two types of permission forms that were required to be completed by parents and then signed off on by the principal. 226 One form related to one-off excursions and the other related to activities such as bowling that continued throughout the year.'?" A bowling excursion form would be given to the office and have been signed off by the assistant principal and signed by the classroom teacher.1”2 227 A teacher was required to submit a form to the principal showing planning had been done, how many students were to be taken and the means of transport. 16 T1267 ~ Ms Forrest. 16 Schoo! Policy; T366 ~ Mr Pratt; T187 ~ Ms Forrest; T465~ Ms Fletcher 1 7429— the plaintiff 18-1467 —Ms Fletcher we 7300 me T301 s*1487—Ms Forrest; T368 and 391 — Mr Pratt and T468 ~ Ms Fletcher 12 T389— Mr Pratt; T466 ~ Ms Fletcher 48 JUDGMENT VOo:ASILMIAS Canta v State of Vietoria Notices had to be sent home seeking parental permission. It depended on the event as to how frequently this process occurred."7? 228 Inher role in 2008, Ms Fletcher would have made sure the form was filled out correctly.’ If it was considered appropriate for a student to stay behind, then it would be arranged they go to another class.'° If a teacher came to her wanting to go bowling, and the students had been bowling before, she would not necessarily ask for all the documents be shown to her before a teacher took their students out.17° The Plaintiff 229 Prior to the said date, whilst at the school, the plaintiff had not been bowling or ‘on any excursion."77 She had been bowling at a previous school.'78 230 Bowling was a carry on from the previous year. The plaintiff thought, on the said date, she could get an empty queue at the Bowl, There was an ongoing agreement with the Bowl and if students could not attend, the Bowl would be notified.17° 231 The plaintiff decided to take the class to the Bow! on the morning of the said date. It was scheduled to happen but to decide whether it was definitely going to happen depended on the weather and the student's ability to attend."®° She understood Ms Winfield knew the routine."8 232 When the children bowled, there were barriers put down inside each lane and a ramp in which they could put the ball. The activity was about turn taking, not "737466 ~ Mr Pratt m 7460 7470 me Taga 766 ‘78 7128 the pizinti’s application for employment with the defendant 766 1 T4132 ‘T1390 VCC:ASILMIAS 49 JUDGMENT Canta v State of Victoria ve 104 05 16 108 233 234 235 236 237 238 239 1137 1138 1187 1251 1255 7254 1267 Ta92 - vec:ASMMIAS scoring." The plaintiff agreed bowling was part of the development curricula for these children." Ms Forrest In 2006 and 2007, she took her class, including Joshua, to the Bow! every Friday. It was a pleasure to take him bowling. It was lovely. ® Bowling was a Term 2 activity because most of the first term was spent getting to know the students and there was a lot of administration to be done."®> In cross-examination, Ms Forrest stated that bowling started in Term 2 mostly because of administrative issues. There should not have been a problem bowling early in the year with an experienced teacher taking students who were very used to bowling. “It was such a normal part of school life.”!® The short time between Joshua's arrival and the excursion should not have made any difference to an experienced teacher. Taking students bowling in ‘Term 4 would not have bothered her, because students move in and out of the classroom all the time, even in such a high needs group.'°7 ‘Teachers organised their own class only. From her recollection, it was a school decision when bowling started.'® Ms Fletcher Ms Fletcher thought it was logical to start bowling in Term 2 when there was an understanding of the classroom dynamics but bowling was not something teachers were required to do. It was the teacher's decision.‘ Whilst agreeing there was a duty of care to prevent or minimise risk of physical 493, 50 JUDGMENT Canta v State of Victoria 10 10 160 + 240 244 242 Taos 7495, 1413 Tat 7412 VeC:AsILMiAs injury to staff, Ms Fletcher explained: “When a teacher comes to us and says ‘We'd like to take the children on an excursion’, then we believe that the teacher is comfortable enough to take the students out, they know the students well enough ... we don't make them." Ms Fletcher agreed however that she had recognised twelve days after the start of the school year would be very early days in order for a teacher to be confident for a totally new classroom of students and that ought to create alarm bells as to whether that teacher really understood what risk management strategies should be in place. 19 Mr Pratt Mr Pratt agreed that early in the year, the plaintiff could not know all the classroom dynamics. It may well be in those circumstances more important to go slowly with an activity such as bowling but he relied on the teacher to tell him professionally about their understanding of the group and their level of confidence in engaging in an activity with a class.‘ The decision to let the plaintiff go bowling would have been based on a discussion around her leaving the schoo!: “It would have been based on her confidence in engaging in the activity and her believing that she was capable and confident to do that. So with hindsight, you kind of go would you do it again, | don’t know. But at the time, my confirmation from Macy would have been or with Kathy at least if not me, that whoever signed the excursion form, she was confident to go. All| can say is that | must have been confident at that time that it was an allright thing to do. | wouldn't purposely put someone into a situation that I elt unsafe for ther. | wouldn't do that. So in my mind | must have felt confident that Macy and the students would be okay." You rely on people to inform you professionally of their understanding of the group and whether or not they feel comfortable in engaging in an activity with the group... you rely on people who are working face to face 51 JUDGMENT Canta v State of Victoria with the group to provide you with that insight and information." Findings 243, 244 Ihave reached the following conclusion on the basis of the above evidence. In my view, a fortnight into the school year was too early for this new class and teacher to be permitted to go bowling. It was an activity that usually commenced later in the school year when students were more settled. Pre-planning and risk management strategies for the excursion 248 246 247 248 we 414 1% 7386 ‘7388 18 T3900 1 T390 Vec:ASLMAS There was no evidence from the plaintif, nor was she cross-examined about any pre-planning undertaken by her or with any other school staff in relation to the excursion Mr Pratt Mr Pratt could not recall what had been done in preparation." The pre- planning would have been preparing the children in the classroom and may involve the preparation of a social story for the proposed excursion. He would expect that to be done; that would be the usual process, it was not something he or the assistant principal had to sign off on.” There was no formalised arrangement of supervision of the teacher's preparation to go bowling. Whilst 4.4.1.1 of the Education Department Policy provided “principals should implement risk management processes for identifying and controlling hazards and risks”, he left that to the teacher. The risk management strategy in place for the bowling might be that, if a teacher felt a student was not okay to leave the school, they would communicate that to the assistant principal and then they would have a discussion around how that would be managed.1 82 JUDGMENT Canta v State of Victoria 249 250 254 252 253 254 7392 7304 7415 1416 1418 7432 7301 BRRERSE VOC:ASILMIAS. Whilst 4.4.2.1 of the Education Department Policy provided “principals who are responsible for the conduct of excursions must ensure that full records are maintained. If accidents or injuries occur comprehensive reports must be completed and filed promptly’, Mr Pratt had no recollection of what he did after the assault but that did not mean he did not do something.2 He was certain Ms Weston and Ms Fletcher were involved.2°" Mr Pratt agreed that it would be appropriate to have a risk management strategy in place as to what to do if a Level 1, Level 2 or Level 3 behaviour incident happened.” There could be the equivalent of a shiny mat or a courtyard in the relevant student's case. He did not know whether there was any such situation at the Bowl,20° Although he had not seen a written plan for this excursion, there would have to be a plan signed off, as that was the process provided by the School Excursion Policy which had been in operation since 2003.2 The Behaviour Support Plan was transferable and applied both at school and away from school.205 Professor Roberts Even with the best plans, you always had the need for a crisis management plan, particularly with excursions. It needed to be thought through, planned, written up, and signed off by the principal for any excursion involving a student's day out of school.20° Professor Roberts could not find any evidence of such a careful plan. She would expect to find a documented plan. This would have been part of the duty 53 JUDGMENT Canta v State of Victoria 20 210 285 286 287 258 259 T2301 7303 305 7306 VeoiasiLas of care of the school, the principal and the teachers. It ensured that people had thought through and had a plan and a strategy.20” If the relevant activity was something that happened weekly you could have a plan that covered going to the Bow! for the particular student which would have to be reviewed regularly. She provided an example of such a plan at Appendix 3 to her report — “Individual Community Risk Assessment February 2012”. This plan should detail Joshua's current medication given his level of behaviour challenges. Also “behaviours observed” should be detailed. This topic would be absolutely applicable for Joshua, for anyone taking him out, in that they needed to know exactly what the behaviour was and what might be triggering it, 208 ‘The only plan was the 20 April 2007 Behaviour Support Plan which detailed the behaviours and described them in terms of levels of escalation. On the appropriate form would be “things that made the student anxious". In Joshua's case, high-pitched squealing should be noted. The next heading ‘signs of anxiety’, would include precursor behaviour, such as increasing vocalisation:2% "You would want to make sure everyone who is working with that student is aware of what those signs are, that they are building up, so that you can put strategies in place to address that before it escalates out of control,"2° The next heading, ‘Community access procedure’, was important, because one thing that was characteristic of people with autism was the need for structure, routine and predictability. Telling that person what was going to happen did not 54 JUDGMENT Canta v State of Victoria zm aie 3 au 216 ar 260 261 262 263 264 7307 7308 7309 7310 1311 T312- 1314 VecAsiLMAS: necessarily help them understand, so there, a visual representation of events was usually used.?1* That would have been the sort of thing that would be absolutely applicable for Joshua, just having a booklet to carry, saying what was going to happen, such as pictures of the Bowl and the ticket-box. You would go through that with him before you went on the excursion. That kept verbals down to a minimum. Visual representation keeps the student calm and reduces their confusion.2”? The next thing would be to pack an outing bag containing preferred food, and possibly using it for a reward for appropriate behaviour. The ‘tisk and strategies" section in the plan was absolutely appropriate in 2008, for Joshua's high support needs, setting out the appropriate strategies.2"° That sort of document was generally prepared by the teacher in consultation with other staff. It was also likely to include the parent and also the principal. It was for the benefit of all staff working with the student The principal needed to know what was going on.2#5 Professor Roberts confirmed the wisdom of the School Excursion Policy that provided the following:21® + "Excursions will be comprehensively planned to maximise the safety of all participants and have a specific educational aim. * Plans will be submitted to the Principal for approval before notification to parents.” Professor Roberts would not have allowed staff to take students out on excursions without a current excursion plan,2"? even though Joshua had been bowling the previous year, because there had been changes happening with ‘See School Excursion Policy 55 JUDGMENT Canta v State of Victoria a0 20 om 265 266 267 268 315 7323 1324 7325 1335 Vec:ASIMVAS. the Christmas break, new staff and possibly new classmates, so there could have been things to trigger behaviour.2"* It would have been very important for an event like going bowling to have an up-to-date behaviour support plan. It was not just that the students were leaming something, but the students and staff were safe when there was a ‘student who has significant challenging behaviours.*1° The behaviour support plan was designed for classroom implementation 222 There were no facilities outside the school setting for an elevation to Level 2 or Level 3 behaviour. There was no shiny mat or time-out space or procedure. You would need to know what staff were to do and what the procedures were in the event of a serious outburst. Apart from having a room set aside at bowling, you would need to ensure you had adequate staff, and at all costs avoid a manhandling situation.22+ Professor Roberts considered that with a student like Joshua, you would not go ‘on an excursion with anything less than one staff member allocated to him and someone who was properly trained who knew what to do. She thought from time to time, Joshua would have needed one-on-one support on excursions. She agreed that depended on his previous experience doing that activity.222 Professor Roberts was concemed the strategies in the April 2007 behaviour support plan were not ones which could be used out of the school. She did not think anybody would suggest there was no chance Joshua would have an outburst on an excursion to the Bowl. There needed to be strategies in place 56 JUDGMENT Canta v State of Victoria and ready to go, for that eventuality, and she could not find any evidence of such strategies. 222 269 Professor Roberts agreed the backup strategy in the event of escalating behaviour was appropriate, but it would take time. It would not be an unreasonable strategy that Ms Forrest suggested. It would be standard to call the school and inform the principal. 225 270 Professor Roberts would certainly recommend that all staff who are involved with high needs students have some sort of training like PART. That program was designed to de-escalate an escalating behaviour, and involved quite a lot of talking the person down. The idea was to avoid physical confrontation.22 Ms Forrest 271 Ms Forrest did a [ot of training with speech therapists and was trained a lot in their techniques so that she could work better with students like Joshua who did not necessarily get speech therapy. 272 Ms Forrest had done PECS training (Picture Exchange Communication System) which was absolutely crucial to Joshua’s wellbeing.” Every teacher in the school knew it, but she was one of the few who did the training.?8 273 Joshua's entire day was based on the system in 2007, If a word was accompanied by a picture, it had a greater impact on him. Any teacher who was teaching Joshua would be assisted in knowing that,229 274 Whilst Joshua never reached Level 3 when bowling with her, Ms Forrest would have telephoned the school if there was a problem and the bus would come.?%° mm 1339 ze 7344 ms 7343 wwe 7346 wz 7228 ze 7229 zs 1228 20 7268 eR aan ie 87 JUDGMENT Canta v State of Victoria a am mu She agreed a contingency plan was appropriate. It was possible but highly unlikely that Joshua's condition could be triggered to a Level 3 situation when bowling. In her experience, his only severe behaviours were in the medication phase. Bowling was such a positive experience, so that was never considered tobe a possibilty 21 275 Ms Forrest had done the PART training which taught very specific and safe ways of moving another person without suffering injury because a lot of people in that environment got a lot of back injuries.252 Ms Fletcher 276 The PECS system was used when the students went bowling. Sometimes students took picture cards to hand to the bowling alley representative 2°° Finding 277 | have reached the following conclusion on the basis of the above evidence. 278 There was no preplanning or any risk management strategies for the excursion. The defendant failed to comply with its obligations under both the School Excursion Policy and the Education Department Policy in this regard. THE MORNING OF THE ASSAULT 279 7269 7236 1467 67 VOCASAMIAS. The Plaintiff The plaintiff, Erica, Michelle and Jacob left the classroom to go bowling. The plaintiff met Joshua and Ms Fletcher in the hallway as they were leaving. The plaintiff asked her whether Joshua could be left at school. She had not seen his parental permission form and she did not believe he was ready to go. Had she been sure that Joshua was going to attend school that day, the class was not going to go bowling.24 88 JUDGMENT Canta v State of Victoria a 8 280 281 282 283 284 285 167 7133 T134 1135 VOC:ASILINAS. Ms Fletcher replied that there were no facilities at the school and they were understaffed that day and the plaintiff was to take Joshua. Ms Fletcher had the permission form in her hand. She had seen it and it was fine. The plaintiff was still questioning her and it was explained that this was part of the curriculum and she was to take Joshua, so she did.?%> The plaintiff gave the excursion form to the office. Joshua’s name was added to it when he arrived in the hallway. The plaintiff did not drop the form off until the class was on their way out. She added Joshua to the list, having been told he had to go.22° Ms Fletcher had taken receipt of Joshua when he arrived and she was handing him over to the plaintiff. He arrived late and was greeted at the door. The plaintiff did not get him at the same time as the other students. The plaintiff would have already been in the classroom with other students. Having packed up the three students, the plaintiff and Ms Winfield had to walk up the corridor to get out the front door and then go across to the Bowl. There they were met at the office by Joshua, his school bag and Ms Fletcher.22” The plaintiff confirmed she asked if Joshua could stay at school. Not arriving straight away, and having the excursion “thrown” at him, he needed preparation and calming down after he got off the bus. He was excited or agitated about something the plaintiff was not aware of. She normally liked to prepare students for the particular excursion 23° The plaintiff did not have time to get Joshua ready because she had Michelle and two other students who “physically hang on her". Those students did not just walk, she had to physically get them to walk. They made noises. There 50 JUDGMENT Canta v State of Victoria 28 20 By 286 287 288 289 1135 1138 1135 mm 7455 VeCASIMAS was a lot going on. It was not just an orderly progression. Michelle's wheelchair had to then be picked up from the office. 2° The plaintiff confirmed that when she thought there was a difficulty taking Joshua, she told Ms Fletcher and Ms Winfield but it was evidently an expectation that they had been doing this last year and that it would continue and “that was what | was told”,24 The plaintiff normally put an “L” on the class list to indicate a student was late.2* On the said date, the entry for Joshua on the class list was an "o” for absence on the top of a line slanting to the left, which indicated Joshua was present in the morning. There was no slanting line to the right indicating he attended in the afternoon:24 ae Scho! Cranbourne Blank attendance roll by Home Group Home Group: 202 ee Metlacy CANTA : a aaah /| me 7 mr ‘awe 4 seo T nora seas ose eer Clanae NA frets nrone gal When shown the symbols for Joshua on 11 February 2008, Ms Winfield was pretty sure that might have meant he was absent for part of the day, orhe came in late due to an appointment, or some other reason. 60 JUDGMENT Canta v State of Victoria 206 a7 248 20 220 202 293, 204 295 7422 7470 vat 1472 7498 500 7501 VOC:ASILMIAS. Mr Pratt agreed an “o” could well be intended to mean an absence for at least some part of the day and it could mean Joshua came late in the morning. He agreed Joshua must have been absent at least some time in the morning.2* Ms Fletcher If a teacher said she did not want to take a particular child she would talk through the issue and let the child go or, in other circumstances, the child stayed and another class was arranged for him. If a teacher was adamant that there was an issue with the child and they had discussed it, and there was good reason why that child should not go, then the teacher should not be made to take them.245 Short staffing is irrelevant, because if there is a safety issue or a problem, something else would be arranged, even if the child stayed in the office.24° Ms Fletcher had no recollection of speaking with the plaintiff on the morning before she went bowling. She did not recall Joshua arriving late and that she had his form. None of the plaintiff's evidence as to the conversation was familiar to her at all.247 Whilst Ms Fletcher agreed there was nothing untoward about a conversation in the terms the plaintiff described, namely being told bowling was part of the curriculum and the plaintiff was to take Joshua, she would never force a teacher to take a child on an excursion,24® Ms Fletcher did not know she had Joshua's permission form in her hand that morning. The school would not have been understaffed that moming. They would have found somewhere for Joshua to go, even if it was the office.26° 6t JUDGMENT Canta v State of Victoria Ms Winfield 298 It was just a normal trip to the Bowl. The plaintiff would have organised it. She could remember four students, including Joshua and Jacob. She could not remember Joshua being at school on time that day. She did not remember any issues on the morning in terms of going bowling while they were at school and she could not remember how they got there, but it was ordinarily by bus. 207 Ms Winfield could not recall the plaintiff having a conversation with Ms Fletcher before going bowling.25" Mr Pratt 298 Mr Pratt was not aware of any discussion between the plaintiff and Ms Fletcher. He would be very surprised if she told the plaintiff there was no supervision at the school and she had to take Joshua bowling. This type of issue was something he would expect the plaintiff to talk about to Ms Fletcher if she was feeling uncomfortable about just Joshua or the whole group going 252 299 Mr Pratt agreed that he would expect the supervising principal to really want to cross-examine the plaintiff about the advisability of going bowling at all, certainly in relation to Joshua.?? 300 There would be an arrangement for an alternate placement of a student who was not to be taken on an excursion. A teacher would never be told there is no choice because it would be unsafe.2* Finding 301 | have reached the following conclusions on the basis of the above evidence. 302 | accept that Joshua was late for school on the morning of the assault. Whilst | am not satisfied that Ms Fletcher “forced” the plaintiff to take Joshua bowling, wt 7456. we 7424 7423 - T434 VOC:ASILWAS 62 JUDGMENT Canta v State of Victoria the plaintiff felt under some pressure to do so. She decided to take the class bowling earlier that moming because Joshua was then not at school. The assault The Plaintiff 303 Ms Winfield, the plaintiff and the four students walked the long way to the Bowl because Michelle was in a wheelchair. When they arrived, there were two other lanes in use.?8 It was busy and music was going.*** 304 Ms Winfield was helping Michelle put the ball on the ramp and she had Joshua. The plaintiff was going to help her with Jacob, then she heard Erica screaming and Joshua approached Erica and started throttling her. The plaintiff thought Joshua had first hit Erica.257 305 The plaintiff told Joshua to stop, and there was no response. She touched his arm but could not undo his grip. She then stood between Erica and Joshua with her back to Joshua trying to prise them apart. Erica kept making a noise and Joshua kept hitting her. 306 Joshua then hit the plaintiff in the back of her head and she dropped to the floor. He continued kicking her until he was tired. This happened for about five minutes but it felt longer. 258 307 In 2007, the plaintiff had undertaken @ PART course which involved physical assault response training. In that course, she was taught how to deflect attack. Because teachers were not allowed to touch the students, they had to learn how to manoeuvre their bodies in a way that would diminish impact. It helped her put her back in that position and manoeuvre Joshua away during the attack. She did not think she would have done that otherwise.? so T68, we Teo. 7 170 me 172 389 T132.~ This course was something Professor Roberts would recommend: T346 63 JUDGMENT VOC:ASILINAS. Canta v State of Victoria 260 2 20 25 308 309 310 ant 312 313 314 170 172 173 173 174 7446, VOC:ASILMIAS The plaintiff is 4 foot 11 and then weighed 90 kilograms. Joshua was about 5 foot 8.760 After the assault, the plaintiff asked Ms Winfield to ring the school but she had no battery in her phone. The plaintiff thought she went to the desk and made a call but could not really remember.2*" When Ms Fletcher arrived at the Bowi, the plaintiff asked her if she could take Joshua back to school in her car but she suggested they all walk together.262 On the retum to school, Ms Fletcher wanted Joshua back in the plaintiff's class but the plaintiff did not. During that conversation, Joshua kicked Ms Fletcher in the leg and it was decided it was better he go to the time out room?* where the plaintiff supervised him. He then started to have what seemed to be an absent seizure and the plaintiff continued to look after him until his mother arrived.24 Ms Winfield Ms Winfield could remember Joshua getting angry, mainly yelling out and then her just calming him down and separating him from the other students. She seemed to recall reading to him to try and calm him down. After reading to him, he did not bow! anymore. The plaintiff rang the school because she was worried about Joshua's behaviour, Ms Fletcher attended and just observed Joshua. They continued bowling for a little while after and then went back to school.65 Joshua went with Ms Fletcher in her car and the rest of them walked back, or went by bus. They went back to the classroom and she did activities with the other students. Joshua was in the classroom. She remembered him getting 64 JUDGMENT Canta v State of Vietoria 7 28 270 an 315 316 37 318 319 7446 1447 7449 Tas0 7450 7451 Vec:ASiLINAS. angry again and he was put into the time-out room where he was monitored. At the end of the day, Joshua went home and it was just a normal day after that.266 Ms Winfield could not recall making a statement on 27 February 2008 which set out: “L saw student kick and hit teacher on various parts of her head and body while she was protecting another student.” 7 Ms Winfield had significant experience working with Ms Forrest and had worked only the twelve days with the plaintiff as at the said date. She could recall Joshua used to get upset with Erica's screeching and that was something they gradually learned.2®® This was less so at the start of the term. It could be a trigger for Joshua, causing him to start verbalising.2 Later in the year, Joshua kicked Erica in the head. Ms Winfield could not recall an incident report being completed in relation to that incident but hoped it would have been.2”° Ms Winfield was pretty sure Rhonda took Joshua back in the car but her memory could be faulty. She did not recall them all walking back, with Ms Fletcher going back with Joshua. She could not recall how they travelled to and from the Bowl on the said date. She could not recall the plaintiff having a conversation with Ms Fletcher before they left the Bowl?” When Joshua became upset with Erica in the classroom, they used to divert her or tried to stop the screeching by doing an activity with her. Ms Winfield 65 JUDGMENT Canta v Stale of Victoria could not remember what they did with Joshua, but thought they did a class activity.2”2 Ms Fletcher 320 Ms Fletcher had seen the Extreme or Dangerous Report completed by her on the said date, witnessed by the plaintiff and Ms Winfield. She had no recollection of the assault.2?? 321 The report set out: “| was called to the bowling alley in the afternoon. When | arrived, Joshua was sitfing on a chair away from the rest of the group. | spoke to Macy about the behaviour Josh was exhibiting- calling out, swearing and kicking ‘out. | observed Josh for a few minutes and decided it was not safe to try to take Josh back to school my her car or by walking. I stayed with Macy and Ros until twas time to come back to school. During this time, | made sure the other students did not move near Joshua, pass him whilst walking or verbally engage with him. The class walked back to the school. Macy and Rosalyn escorted three students. | walked back with Joshua to ensure his safety in returning. When we retumed to school, Macy and I decided it was not safe for Josh to go back to the classroom, so we led him to the time-out room. Josh kicked me in the groin. Macy stayed at the door of the time-out room talking to Josh whilst | went into the classroom to assist Ros with lunch, | checked on Macy a few times to ensure she was okay as she had hurt her neck at some time during this incident. Macy stayed with Josh until he calmed down. | relieved Macy during lunchtime so she could have a break (Josh was sleeping most of lunchtime). After lunch, Josh had calmed down and returned to class.” Mr Pratt 322 Mr Pratt’s recollection of the assault was “not all that good”. He agreed what was described by the plaintiff was an extraordinary event and that it would not be every day that a teacher was punched to the ground and then kicked. From year to year, such a violent attack on a teacher occurred.2”4 zm T4s7 zm 7473 ae 7381 peepee 66 JUDGMENT Canta v State of Victoria Finding 323 | accept the plaintif's unchallenged evidence of the assault circumstances of the assault circumstances. Post assault 324, 325 326 327 328 329 ws 174 zm 1376 ar 482 VoCASILWAS The Plaintiff The plaintiff attended her general practitioner, Dr Williams, who prescribed Mersyndol and certified her unfit for a week and a day. Ms Fletcher and Mr Pratt did not contact her during this time. On her return to work, the plaintiff félt like an assault could happen again.25 During the plaintiff's absence from work on sick leave in the week after the assault, there were a series of emails between her and Mr Pratt. On 20 February 2008 at 11.25am, the plaintiff emailed Mr Pratt advising she was under the belief her leave was dependant on getting the Monash job which she did not get. Mr Pratt did not understand that to be the situation.2”° In her email, the plaintiff then noted that she had found Gemma in her classroom the previous week and realised Mr Pratt intended the plaintiff go and Gemma be given her class. The plaintiff advised she had not realised he had not intended to talk to her first and that hurt her greatly. She had since been told by others that she is to leave, so she had been trying to sell her block of land as she could not afford her mortgage on a casual relief wage. The plaintiff had been trying to sell the block since she knew the Monash application was unsuccessful. The land did not take long to sell.277 67 JUDGMENT Canta v State of Victoria me 200 22 330 331 332 334 335 336 1152 1153 The plaintiff wanted to stay at the school. She just really wanted the play therapy qualification. She intended to leave at the time of that email but her intention changed.2”° She understood Mr Pratt wanted to arrange a replacement but she just wanted a “heads up". She would have liked to have been introduced to Gemma, and the two of them walked around the class first 279 The plaintiff could not recall receiving a handwritten note from Mr Pratt dated 20 February 2008 requesting they meet to formalise her leave application.28° That note also set out Mr Pratt had spoken to Gemma and she was keen to work with the plaintiff's group for the rest of the year.2®" On 21 February 2008, Mr Pratt sent a memo to the plaintiff advising he had scheduled a meeting the following day regarding her leave intentions. He noted she had indicated in her 11 February 2008 email that she intended to formally request leave by the end of the previous week and that there was absolutely no indication leave was dependent upon any other job. The plaintiff could not recall receiving an email from Mr Pratt on 21 February 2008 at 9.38am advising he had put a note in her pigeon hole informing her of meeting the following afternoon to resolve the confusion about her leave application 282 At 1.29pm on 24 February 2008, the plaintiff emailed Mr Pratt thanking him for the appointment time. She advised that she had not got back to him as she was in a lot of pain and had another doctor's appointment the following day. At 3.38pm thet day, the plaintiff again emailed Mr Pratt. T131 ~ the plaintif first saw the note in cross-examination 1183 7153 VecAsmMAs: 68 JUDGMENT Canta v State of Victoria 337 338 “Hi Dennis Ihave read your memo and the attached email from myself, | do not disagree that the email was not inclusive of the need to have other ‘employment in order to have the break Ineed. The email was done in haste when you exhibitfed] impatience with me on the Monday, and said you needed some thing in writing now! | also believe it correct for the replacement teacher to speak to me before my aid. How was Emma to know that, | had informed Ros about my application? It was my business not Rosalyn’s and Emma should have spoken to me first and not have placed Rosalyn and myself in this position. I understand that it was you whom had given Emma the permission to talk to Rosalyn? You might of thought to tell me out of the same respect | hold for you. had every intention to write a more inclusive email however the events in the classroom of aggressive behaviour from Joshua Mason has left me exhausted and fragile, so tofo] has the lack of support. The extremely aggressive attack at the Bowling alley has prevented my further correspondence and attention to this subject. | am under orders from my doctor to perform light duties and have more follow up visit{s] to come. The fact that no one rang to see if | was ok and that | only received a form to be filled out when I returned to work on the Monday was not good. It ‘was not until the Tuesday that Kathy asked if | was ok. The attack at the bowling alley was extremely upsetting, a debrief might have helped to ease my mind that | was not at fault and that my best efforts to teach in this room have been noted. It has been very hard to take over in a classroom where no hand over or follow up of students needs and habits have taken place. | miss Catherine!!!" The plaintiff did not write a more inclusive email because her intentions were to write 2 really good report. Her need was to protect the students and be there and make sure Joshua did not harm himself or other students. That took all her time Mr Pratt Mr Pratt could not recall receiving this email.2* He did not disagree with what the plaintiff was saying or how she felt.23° a 174 - re-examination wo T425 me 7426 VCC:ASILMIAS 69 JUDGMENT Canta v State of Victoria 200 20 am 339 340 344 342 343 1427 1393 T3904 T3904 391 7393 7408 Voo-ASIMAS Mr Pratt did not recall having a conversation with the plaintiff about the assault 2° Mr Pratt understood Kathy Weston ‘worked around the incident” and he was certain she would have spoken to him about it?” He was certain Kathy Weston and Rhonda Fletcher were involved on the day and he thought Ms Fletcher was involved, particularly on the day, and they would have followed it up with the plaintiff 2 Mr Pratt agreed he did not take any steps to inform himself as to what planning had taken place for the excursion, He knew that activity was around engagement with the community.2® Having been taken to 4.4.2.1 of the Education Department Policy, Mr Pratt had no recollection of what he did subsequent to the assault, but that did not mean he did not do something. He believed the documents referred to in that section would have been present. Mr Pratt agreed that if he had complied with the Education Department Policy, ‘one would expect there to be a file or something about the assault, in which there would be documents predating it, and investigations postdating it.2%" He was not confident there were any preplanning documents relating to the excursion.2%2 70 JUDGMENT Canta v State of Vietoria. oy an 208 ar 28 The second incident 344 345 346 347 348, 560 174 T140 175 m41 we 178 Vec:AsiLMias Counsel for the defendant when addressing on quantum, submitted there should be a reduction in any damages awarded when the circumstances of a second incident were taken into account.28 The plaintiff was supposed to be given light duties but she was back with her four students on reduced hours when a second incident occurred maybe five days later. tt sounded correct this incident ocourred on the first day back from sick leave, namely 23 February 2008.2% On her return to school after the assault, in class, the plaintiff would not take her eyes off Joshua. Because she paid him so much attention, Erica grabbed the plaintiff by the chin and her ponytail. Ms Winfield had to prise Erica from the plaintiff. The plaintiff suffered extreme neck pain. She was still in pain from the assault and this incident caused her more pain, 7°° The plaintiff probably kept working that day. She saw Dr Williams, who sent her for a scan and gave her a certificate for seven days and referred her to a neurologist and a physiotherapist. Painkillers prescribed after the assault continued.?®” The plaintiff worked half days for about two weeks after the second incident. She was put in a class with some very loud boys. She was punched in the stomach again and realised she could not help the kids and perhaps they saw her as being weak and that made her a target. She was having nightmares about the assault and she did not like being close to the students? and she kept having panic attacks.2°° n JUDGMENT Canta v State of Victoria 349 360 so 7453, VoC:ASILMUAS Between about March and May 2008, the plaintiff worked in a different area of the school. She was placed in a different classroom. There was a teacher's aide and a teacher in the classroom with her. She was not the acting teacher.30? ‘The plaintiff emailed the Department on 25 March 2008, as follows: “To: Employee Health Subject: teacher on work cover refused to pay, bank threat of closure on morgage (sic) and rent unable to pay!!! Department of Education Melbourne Victoria 3001 HR Attention ~ Regard[ing] grievans jenied wage while on work cover! Employer-: Marnebek School New Holland Drive, Cranboume Victoria 3977. Employee-: Macy Canta Department No O6#tttititt CGU work cover claim no O40;#HHHHHHE Claim was processed and approved on the 28% of February 2008. Marnebek School has been using my sick leave with out arranging for compensation to be paid as | have now been unable to work for a total of 23 days. Michelle Holdsworth, the business manager at Marnebek School decided to wait until the 20" of March to type a letter to notify me (not phone) that my sick leave is exhausted and that | will not be getting paid as of the 14” of March. This letter reached me on the 24th of March, 10 days after | lost my income making it impossible for me to contact the department or the insurance company in time to ensure that | received some income. As a result | can not pay my mortgage, rent, VIT registration, credit card or health benefits at a time that | most need my health benefits These injuries occurred on the 15of February and were a result of being kicked in the groin, legs, back and being punched in the head by a 15 year old student at Marnebek School. The result is two prolapsed veriebra, ‘one in the neck and another in the torso/middle back. These injuries have been extremely debilitating and have cause[d] severe pain and headaches. | returned to work the following Monday with a work cover certificate for modified duties but was placed back in the same classroom and once 72 JUDGMENT Canta v State of Victoria again injured on the 22% of February when @ female student grab[bed] my throat and used my pony tail for leverage as she force[d] my head around painfully. It took some time for my SSO and me to get the student to let go. They (sic) way that | have been treated is appalling and to top this off with a letter stating that { shall not be paid 10 days after my pay was stop[ped] is proof of the type [of] care taken by Mamabek School of their employees. However, what | need to know now is why when CGU Workers Compensation has approved my claim, does the Department of Education still refuse me compensation and wage(s}! Ms Macy Canta."*! (sic) 351 There was then no prospect of the plaintiff returning to the schoo! then and she was afraid of being put in Joshua's class. It was fair to say that her relationship with Mr Pratt had broken down by that stage, as had her relationship with everyone else. She was thinking about the future. She thought her treatment had been appalling.%2 352. The plaintiff emailed the Department of Education Human Resources requesting a transfer to another school on 26 March 2008, as follows: "To: Employee Health Subject: Request for transfer to another school, Macy Canta Attention -: The Department of Education Human Resource[s] Health and Safety From =: Macy Louise Canta Work Cover Claim No 040d: Employer Department of Education Employee Macy Louise Canta No OBi#HHtiH Date of Injury 14 February 2008 On the 14-03-08 | was punch{ed] in the head and repeatedly, kicked in the back, groin, abdomen and legs by a 15 year old High Needs student whom attends Marnebek School. This has not been an isolate|d] attack, but has been the most aggressive and prolonged attack | have ever suffered, As a result I have sustained a prolapsed disc in the Cervical ™ PCB 143 me T1856 VOC:ASILMIAS 73 JUDGMENT Canta v State of Victoria C6/7 another in the Thoracic region of my spine and a Lumber apophysitis. All of which ere painful and serious injuries which | do not wish to have occur again, I returned to work on the 18-03-08 and as | was still in considerable pain my GP had requested | do light duties only. | was place{d] back into my class room where | was again attacked. This attack happened on the 21- 03-08 involving another student whom grabbed me from behind wrapped her hands around my neck while using my pony tail as leverage to twisted (sic) my neck painfully around, These attacks are unpredictable and common in special education as students often strike out in anger or frustration, Therefore | do not believe that it is possible for the principal staff at Marmebek to guarantee that attacks or further injury will not occur. Because of the nature of the injuries to my spine, | am concemed of the possibility of further damage should another attack or incident occur and request that | be transferred to other employment to guard against such possibilities. Prior to the date of injury, | had complained about the lack of tea and lunch breaks and the lack of leadership support due to the schools habit of pulling out sub section leaders to fill Assistant Principal Position[s] and not replacing the role of leadership. This would be through out the year and for extended periods of time. Student welfare is (sic) high staff welfare is less than nothing. The teachers and SSO staff have yard duty every day and if a hot or wet time table is called, which is a weekly occurrence then they must stay in the room with their students. Teachers and SSO steff of High Needs Students often cannot get their student to go out side and if they can they are left with littl time to toilet and return to class. On a wet time table SSO and Teacher are to do 15 minutes each but it is rarely possible to leave one staff member in charge of extremely high needs students. It has also been a common practice of the school to leave the SSO staff with out the support of a teacher most often they are completely on their own, for weeks not days. The pressures of this job have taken its toll on me, and work injuries were becoming more and more frequent. Injuries are treated as expected work hazards in a Special Education setting so many are not reported because they happen daily! | am sick of being spat at, kicked, punched and having my neck throttled. | know the students in High Needs can not be accountable for their action that is why the staff continues to do their best for them. But what has happened to duty of care to the stafll! had discounted my membership with the ACU because | thought that the Department would look after its employees but they have not! | am [a] passionate educator, but | can not continue as a teacher working in a school that answer{s] complaints with, ‘If you do not want to be here we don't want you here’. Is there not some responsibility of the Principal to create a working environment that is happy and safe? Please | request a transfer before | am put off teaching alll together, | have a Masters in Education and in the past a 120% commitment to supporting 74 JUDGMENT VOC:ASILMAS. Canta v State of Victoria student's emotional and educational needs. Yours sincerely Ms Macy Louise Canta.” (sic) 363 The plaintiff could not recall much of the latter period she spent at the school. “One foot in front of the other" was all she could achieve. She did not recall dates. She recalled trying to survive. She was surprised when advised she had worked until May 2008.2 354 The plaintiff agreed she left the school as she could no longer cope physically and emotionally. She denied that by March 2008 she had simply decided she no longer wanted fo teach at the school and that is why she left, She had spent a lifetime getting her qualifications. She loved the children and wanted to help them so much. It was not about the school, it was about the kids. 3595 When asked why she had not returned to work, she replied “what good am 1?" and then collapsed in the witness box. Question 1 Was there a reasonably foreseeable risk that the Plaintiff would suffer injury as a result of the school’s actions? 358 Even on the defendant's case (the plaintiff took Joshua bowling knowing he was violent and the school relied on her confidence to do so), Joshua had a long history of violent behaviour towards both classmates and teachers. There were reports dating back to his early years detailing violent outbursts and difficulties with other children and his sensitivity to high-pitched noises. 367 As counsel for the defendant submitted, a reading of the star charts would well and truly alert a teacher to the propensity of Joshua for violent and unpredictable behaviour.2° fee 1157 oe T1859 T5608 erry 75 JUDGMENT Canta v State of Victoria 358 359 360 361 362 363 Clearly, steps had been taken to address this behaviour at school, with Joshua faking lunch and tea breaks in a separate area of the playground to other children. Further, a shiny mat was provided for him to sit on when his behaviour escalated. Itis disputed that the plaintiff requested Joshua not be in her class and that she then complained of his violent behaviour prior to the assault when he was in her class. Whilst | am not satisfied specific request was made by the plaintiff, | do accept that there were issues about Joshua’s behaviour prior to the assault — of him “kicking out” — and that the plaintiff complained in relation thereto to the principal and other staff members. Although the plaintiff's emails make no specific reference to such a complaint, the tone thereof is consistent with her having made verbal complaints as she stated: * “The physical toll of the job” ~ 11 February 2008 email to Mr Pratt. + The email to the Department HR dated 26 March 2008: this has not been an isolated assault but has been the most aggressive and prolonged attack | have ever suffered ... these attacks are unpredictable and common in special education as students often strike out in anger or frustration, "5° Whilst Mr Pratt denies such complaints were made to him by the plaintiff, his evidence that, if she had done so, she would have been told of supports rather than removing Joshua from the class, is consistent with Joshua's continued presence in the classroom. It seems all that in fact was done in relation to any complaint was to make sure Joshua's shoes were removed®” — Mr Pratt and Ms Forrest confirm this was a DCB 146 am T525 cf - more would have been done VECASANAS. 76 JUDGMENT Canta v State of Vietoria 364 365 366 367 369 370 38 T4682 7525 VeCASILMIAS done, but deny it was the only step taken in response to Joshua's violent behaviour. | reject the submission that if there had been incidents earlier in the 2008 school year, they would have been documented and investigated. Mr Pratt's failure to collate material relevant to the assault, as required under the Education Department Policy, gives no confidence that such related issues were handled any better, Clearly, the assault occurred. It was a significant incident about which there is very little documentation available. The only documentation suggesting any post-assault investigation is the Extreme or Dangerous Behaviour Report compiled by Ms Fletcher, and Ms Winfield’s statement. Further, after the assault, all the plaintiff's class returned to the classroom together, despite Joshua having assaulted Erica earlier that day. | can more readily accept the plaintif's evidence of complaints prior to the assault, as there was no explanation why Lisa O'Brien and the occupational therapist to whom the plaintiff complained of Joshua kicking, were not called Further, Ms Fletcher confirmed that Lisa O’Brien was the head of the middle school.3°° However, Joshua kicking Erica before the assault was not put to Ms Winfield in cross-examination.2° Against this background, the circumstances of the handover must be considered. | accept that little, if any, documentation about Joshua was made available to the plaintiff when he joined her class on 30 January 2008. The plaintiff's 7 JUDGMENT Canta v State of Victoria ant 372 373 374 378 376 so 154 VOC:ASAMIAS evidence in this regard is not contradicted. (There is no evidence of what she was given, just reference to what she would have been given). Whilst the plaintiff confused Jacob with Joshua as to his level of attendance prior to the said date, | accept that the plaintiff's 2008 class was not fixed at the end of the 2007 year, with Jacob being added later as the class list indicated. | am not satisfied there was any information made available to the plaintiff relating to Joshua at the time he joined the class. Significantly, she did not even know Joshua was an epileptic until he had an epileptic absence in the aftemoon after the assault. Evidence relied upon by the defendant was simply to the effect of what should have been provided if the system was operating properly, not what was provided. Professor Roberts confirmed what documentation should have been provided. There is no evidence that it was. Therefore, | do not accept the submission that the plaintiff had not read what was available because of her interest in pursuing play therapy later that year which would have involved her leaving the school.*° In any event, the Behaviour Support Plan was out of date, having been completed by Delia Forrest in April 2007. No recent plan was available. No one could say who was the relief teacher at the end of 2007 after Ms Forrest left, let alone whether an up-to-date plan had in fact been completed. The plan should have been revised following Joshua's medication review, as Ms Forrest conceded. Further, Professor Roberts thought the plan was deficient as it did not contain off-campus strategies. A properly completed behaviour support plan would have contained details of warning signs of Joshua's escalating behaviour and 518 78 JUDGMENT Canta v State of Victoria om 2 ou 377 378 379 380 381 382 T5990 1873 7590 7591 VeoASiLMAs strategies to cope with such escalation to enable the new teacher to know what to do in those circumstances.3"" There was no evidence of any discussion with Joshua’s 2007 class teacher, as Ms Forrest described would usually be the case, no one being able to say who was ultimately responsible for the handover, having replaced Ms Forrest after she went off on stress leave in August 2007. In her 11 February 2008 email to Ms Weston, the plaintiff noted the problems she was having communicating with her new high needs class. The plaintiff specifically noted problems with the handover in her 21 February 2008 email to Mr Pratt. In these circumstances, | do not accept the school was properly organised and run with specific systems to deal with a new class teacher at the start of a school year, as was submitted on its behalf. This was the plaintiff's first high needs class. Whilst she had completed a Masters in curriculum, she had not undergone specialist training as to how to deal with high needs students, save for her involvement in the PART — physical restraint course, *2 ‘As counsel for the plaintiff submitted, the mere fact that the defendant knew there was some utility in its staff participating in the PART program, demonstrated the defendant's knowledge that physical confrontation was a realistic prospect and needed to be dealt with.° There was a positive obligation on the plaintiff to intervene when Joshua was attacking Erica at the Bow..314 79 JUDGMENT Canta v State of Victoria 383 385 386 387 388 389 390 3181874 318 1590 VCCASILMAS. The plaintiffs high needs teaching experience was vastly different to that of the very competent Ms Forrest, who described herself as an excellent teacher who was given the class of eleven boys, and Joshua, in patticular, in 2006 because of her experience and skill in that area.°"° As Mr Pratt acknowledged, he would have had to keep a closer eye on the plaintiff than was the case with Ms Forrest. The dynamics of the classroom at the start of the year are also relevant when considering the issue of foreseeability. Whilst there were three of the same students from the 2007 year, Erica was added to the 2008 class and the plaintiff was a new teacher. All teachers in this case acknowledge to some degree the difficulties with a new group at the start of a school year, particularly with autistic children, who need a structured, reliable environment. Allowing the class fo go bowling so early in the year with these new year issues, Joshua's propensity and the addition of Erica with high-pitched squeals created potential danger of injury to the plaintiff. Proper planning and a risk management strategy was required to avoid this happening. Joshua's problem with high-pitched squealing was noted specifically in his 2008 Behaviour Support Plan. That was the sort of material that should have been in the plan at the start of the 2008 school year when the decision was made to go bowling.2"° The plaintiff had not been bowling before at the school although she had elsewhere. She had never taken a class on an excursion at the school. | accept bowling was usually a Term 2 activity, the main reason being class room dynamics were more difficult at the start of the year. Administrative 80 JUDGMENT Canta v State of Victoria 391 392 393 304 395 sm 1529 se 7530 a T504— VecAsiLMAS. considerations may also have played a part as Ms Forrest attempted to stress later in her evidence having initially given both explanations. No challenge was made to the plaintiff's account of the assault. | accept that the evidence only supports a finding that Joshua was left relatively unsupervised and near Erica. Whilst it cannot be known for certain what triggered Joshua's attack on Erica, such a response was one that was a known response of Joshua, particularly when exposed to high-pitched squealing. The plaintiff was required to intervene and did so in accordance with her PART training In my view, taking into account Joshua's propensity for violent behaviour, the addition of Erica who was prone to episodes of loud squealing which were a known to trigger to Joshua's behaviour,*" the plaintiff's relative inexperience in high needs teaching, the lack of proper handover and new class dynamics at the start of the year, it was reasonably foreseeable the plaintiff would suffer injury if no proper pre-planning was carried out as to the appropriateness of this excursion. Further, when the excursion went ahead, there was no risk management strategy to cope with Joshua's behaviour at the Bowl if his behaviour escalated. It does not matter that there was no incident with Joshua at the Bowl before the said date and that he had previously enjoyed bowling, as counsel for the defendant submitted®" or that there had been no incidents in earlier bowling excursions." Previous bowling excursions involving Joshua had been supervised by the very experienced Ms Forrest and did not include Erica, whose high-pitched Ms Fletcher at JUDGMENT Canta v State of Vicioria