Canta v State of Victoria
[2015] VCC 1795
•11 December 2015
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-13-01901
| MACY LOUISE CANTA | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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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: | 11 December 2015 | |
CASE MAY BE CITED AS: | Canta v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1795 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Workplace injury – school teacher – psychiatric injury – injury to the cervical spine – duty owed by an employer to an employee – foreseeability – damages
Legislation Cited: Wrongs Act 1958
Cases Cited:Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 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; Kondis v State Transport Authority (1984) 154 CLR 672; Iannello v BAE Automation & Electrical Services Pty Ltd [2008] VSC 544; Swann v Monash Law Book Co-operative(t/as 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: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with Mr A C Dimsey | Arnold Thomas & Becker |
| For the Defendant | Mr T J Casey QC with Ms M J Lang | Minter Ellison |
Table of Contents
INTRODUCTION................................................................................................................................. 1
Issues for determination................................................................................................................. 2
LEGAL PRINCIPLES......................................................................................................................... 2
The Plaintiff’s pre-injury health and domestic situation........................................................ 8
The Plaintiff’s witnesses................................................................................................................. 8
Expert evidence............................................................................................................................. 8
Lay evidence.................................................................................................................................. 9
The Defendant’s witnesses............................................................................................................ 9
Credit.................................................................................................................................................. 11
The Plaintiff’s witnesses............................................................................................................ 13
The Defendant’s witnesses....................................................................................................... 14
EVENTS PRE ASSAULT................................................................................................................ 15
Knowledge of Joshua’s propensity for violence................................................................... 15
The Plaintiff.................................................................................................................................. 15
Ms Forrest.................................................................................................................................... 16
Mr Pratt......................................................................................................................................... 24
Ms Winfield.................................................................................................................................. 24
The class handover........................................................................................................................ 25
The Plaintiff.................................................................................................................................. 25
Professor Roberts....................................................................................................................... 29
Mr Pratt......................................................................................................................................... 31
Ms Winfield.................................................................................................................................. 33
Ms Forrest.................................................................................................................................... 33
Ms Fletcher.................................................................................................................................. 34
The Plaintiff’s high needs teaching experience/classroom dynamics at the start of
the school year................................................................................................................................ 34
The Plaintiff.................................................................................................................................. 34
Mr Pratt......................................................................................................................................... 35
Professor Roberts....................................................................................................................... 36
Ms Forrest.................................................................................................................................... 37
Ms Winfield.................................................................................................................................. 37
Joshua’s behaviour in 2008 prior to the assault.................................................................... 38
The Plaintiff.................................................................................................................................. 38
Ms Winfield.................................................................................................................................. 38
Mr Pratt......................................................................................................................................... 39
The Plaintiff’s career plans in 2008 – play therapy............................................................... 39
The Plaintiff.................................................................................................................................. 40
Mr Pratt......................................................................................................................................... 42
THE BOWLING ACTIVITY............................................................................................................. 43
Professor Roberts....................................................................................................................... 48
The Plaintiff.................................................................................................................................. 49
Ms Forrest.................................................................................................................................... 50
Ms Fletcher.................................................................................................................................. 50
Mr Pratt......................................................................................................................................... 51
Pre-planning and risk management strategies for the excursion..................................... 52
Mr Pratt......................................................................................................................................... 52
Professor Roberts....................................................................................................................... 53
Ms Forrest.................................................................................................................................... 57
Ms Fletcher.................................................................................................................................. 58
THE MORNING OF THE ASSAULT............................................................................................. 58
The Plaintiff.................................................................................................................................. 58
Ms Fletcher.................................................................................................................................. 60
Ms Winfield.................................................................................................................................. 61
Mr Pratt......................................................................................................................................... 62
The assault....................................................................................................................................... 62
The Plaintiff.................................................................................................................................. 62
Ms Winfield.................................................................................................................................. 64
Ms Fletcher.................................................................................................................................. 65
Mr Pratt......................................................................................................................................... 66
Post assault..................................................................................................................................... 66
The Plaintiff.................................................................................................................................. 66
Mr Pratt......................................................................................................................................... 69
The second incident...................................................................................................................... 70
Question 1........................................................................................................................................ 75
Was there a reasonably foreseeable risk that the Plaintiff would suffer injury as a
result of the school’s actions?................................................................................................... 75
Question 2........................................................................................................................................ 82
What would a reasonable school have done in response to the risk?............................... 82
Question 3........................................................................................................................................ 86
Were the actions of the school that were not reasonable a cause of the Plaintiff’s
injury, loss and damage?........................................................................................................... 86
Question 4........................................................................................................................................ 87
What is the nature and extent of the Plaintiff’s injury, loss and damage?......................... 87
Post assault/the Plaintiff’s medical treatment........................................................................ 87
Mr Heffernan................................................................................................................................ 91
Medical evidence – the Plaintiff.................................................................................................. 93
Treaters........................................................................................................................................ 94
Medico-legal evidence............................................................................................................. 100
Investigations............................................................................................................................ 102
The Defendant’s medico-legal evidence................................................................................ 103
Overview......................................................................................................................................... 106
Question 5...................................................................................................................................... 111
What is an appropriate sum for damages for pain and suffering?................................... 111
HER HONOUR:
INTRODUCTION
1 The defendant operated a special school, Marnebek, 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.
2 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 Crown Proceedings Act 1958.
3 The defendant admits that on a school excursion[1] 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”).
[1]Transcript “T” 390
4 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 Bowl.[2]
[2]T567-8
5 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[3] (“the Education Department Policy”), the defendant denies it was negligent.
[3]Clause 4.4.1and Clause 6.16.1.1
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]
[4](2005) 222 CLR 44
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) If yes, 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 plaintiff’s injury, loss and damage?
(d) 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:[5]
“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.”
[5](2005) 214 ALR 349 at paragraph 12
9 The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.[6]
[6]McLean v Tedman & Brambles Holdings Ltd (1984) HCA 60 at paragraph 12
10 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.
11 In Wyong Shire Council v Shirt,[7] 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 fanciful is real and therefore foreseeable. … .”
[7](1980) 146 CLR 40
12 In State ofNew South Wales v Fahy,[8] the High Court set out what at times has been referred to as the “Shirt calculus”:
[8](2007) HCA 20 at paragraphs 56-58
“56.The Court's decision in Shirt has rightly been understood as 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 well 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, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’
57.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.”
13 As J Forrest J stated in Hardy v Mikropul Australia Pty Ltd,[9] 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 injury to the plaintiff.
[9][2010] VSC 42 at paragraph 225
14 The High Court, whilst acknowledging Wyong Shire Council v Shirt [10] 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.”
[10]Supra
15 In Rosenberg v Percival,[11] Gleeson J said:
[11](2001) 205 CLR 434 at paragraph 16
“… 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,[12] 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:
‘[T]he 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 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’.”
[12](2005) HCA 62
16 In March v Stramare,[13] 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.”[14]
[13]March v Stramare (1991) HCA 12 per Mason CJ
[14]Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663
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 Swinburne.
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.
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.[15]
[15]T123
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.[16] High needs classes were situated closer to the office, with special needs classes located at the other side of the school.[17]
[16]T43
[17]T51
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.[18]
[18]T356 Mr Pratt
The assault
27 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.
28 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.
29 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.
30 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.
31 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.
32 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.
The Plaintiff’s pre-injury health and domestic situation
33 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. 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.
34 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
Expert evidence
35 Professor Jacqueline Roberts, Professional Chair for Autism at the Autism Centre of Excellence at Griffith University, was the only expert witness in this case.
36 Professor Roberts considered that there was no evidence that there was adequate planning for the management of Joshua’s behaviour while on excursions 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.
37 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.
38 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.
39 In my view, when advised of these additional facts, her opinion did not change to any material degree.[19]
[19]T587
Lay evidence
40 The plaintiff’s son, Boyd Heffernan, was aged twenty-four and resided with the plaintiff at Cranbourne at the time of the assault. He described the plaintiff’s active lifestyle as a hardworking teacher prior to the assault.
41 Thereafter, the plaintiff has suffered significant emotional upset and there have been difficulties with their relationship.
The Defendant’s witnesses
42 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.
43 Mr Pratt detailed the email chain between himself and the plaintiff early in 2008 concerning her plans to study play therapy late that year.
44 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.
45 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.
46 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.
47 Delia Forrest was a classroom teacher at the school between 2002 and early 2008, when she left on stress leave.
48 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.
49 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.
50 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.
51 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.
52 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.
53 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.
54 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.
55 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.
56 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 plaintiff’s direct report.
57 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.
58 Ms Fletcher had no recollection of speaking to the plaintiff on the morning 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.
59 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 school to look after children who did not go on an excursion.
Credit
60 Overall, I found the plaintiff to be a truthful witness who gave evidence over two days quite cogently, although at times crying and visibly distressed.
61 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.
62 While the defendant’s counsel submitted there was significant animosity on the plaintiff’s part against the school that continued into this hearing,[20] in my view, any animosity does not detract from the veracity of the plaintiff’s evidence generally. Further, Mr Pratt thought there was no negative relationship between himself and the plaintiff.[21]
[20]T519
[21]T373
63 Although the plaintiff’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 I largely accept her description of the relevant events.
64 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.
65 Clearly, there are a number of inaccuracies in the plaintiff’s affidavit in support of her s134AB application sworn on 20 June 2012.[22] 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.
[22]Cross-examination: T114-21
66 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, I accept the plaintiff was confused about Joshua’s 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.[23]
[23]T576
67 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, I accept that these difficulties existed.
68 Generally, I 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 part.[24]
[24]T575
The Plaintiff’s witnesses
69 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.
70 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
71 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.
72 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.
73 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.
74 I 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.
75 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.[25] 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.
[25]T381 – Mr Pratt
76 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.[26]
[26]T522
77 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 happened, not what did happen. There were however some issues where the plaintiff was clearly mistaken, and I accept Mr Pratt’s evidence that there was no Education Department directive that Joshua have a 1:1 staff allocation in 2007.
78 Rosalyn Winfield knew so little about any relevant matters that I am unable to make any finding as to her credit.
EVENTS PRE ASSAULT
Knowledge of Joshua’s propensity for violence
The Plaintiff
79 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]
[27]T55
80 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.[28]
[28]T105
81 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”.[29]
[29]T116
82 Through the staff rumour mill, the plaintiff thought Joshua had killed his pets over the Christmas holidays.[30] 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.
[30]T89
83 Further, the plaintiff believed there was an Education Department directive that Joshua have his own teacher’s aide all the time.[31] 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.[32]
[31]T90
[32]T181
Ms Forrest
84 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.[33] She had only ever taught high needs students.[34]
[33]T178
[34]T207
85 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.[35] 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.[36]
[35]T182
[36]T189
86 Ms Forrest thought the 2006 class was not the most successful classroom set up. She managed it, because she was an excellent teacher, and that is why she was given that class and why Joshua was put in it.[37]
[37]T210
87 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.[38]
[38]T183
88 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.[39]
[39]T214
89 Noise sensitivity was a major feature of Joshua’s sensory makeup but it was only some sounds.[40] Ms Forrest thought Erica‘s high-pitched squealing might well be a trigger or a baiting noise for him.[41]
[40]T215
[41]T250
90 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.[42]
[42]T247
91 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.[43]
[43]T185
92 That class was far more structured than the 2006 class. It was a high needs class that was managed differently.[44] Joshua did not require one-to-one supervision that year.[45]
[44]T190
[45]T205
93 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.
94 Ms Forrest described three levels of escalating behaviour from Level 1, which included lots of giggling, dribbling and oppositional behaviour, to Level 3, which involved kicking, hitting other students, especially female students or little children.[46]
[46]T216
95 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”.
96 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.
97 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.
98 On other occasions, Joshua appeared to become verbally and physically aggressive after he had experienced an epileptic absence or when he was really tired.
99 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.
100 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.
101 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.[47] Level 3 was spending time in the courtyard.[48]
[47]T192
[48]T193
102 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.
103 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.
104 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.
105 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.”
106 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 a poor judge of his own personal space and does not like being touched other than holding hands.”
107 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.
108 In June 2007, Ms Forrest wrote to the plaintiff’s paediatrician to allow him to understand Joshua’s aggressive behaviour under the influence of medication.[49] 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.
[49]T200
109 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.
110 This paediatrician, Dr Smith, wrote to Ms Forrest about the plaintiff’s medication issues in April, June and August 2008.[50]
[50]T191
111 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.[51]
[51]T193
112 Ms Forrest confirmed the charts contained a number of examples of Joshua kicking out.[52] 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.
[52]T198
113 On 8 June 2007, Ms Forrest recorded:
“Josh started to hit me and kick me. I deflected some hits but got hit on the face and hand. Cut hand. Bruised face.”
114 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.[53]
[53]T199
115 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.[54]
[54]T232
116 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.
117 One such example was on 14 August 2007 when M Forrest noted:
“Josh lay back and kicked Michelle.”
118 In cross-examination, Ms Forrest confirmed the following documents were contained in Joshua’s file:[55]
[55]T212
· A Monash Medical Centre psychological assessment report in July 2005 when Joshua was 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 5 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-children noise and high-pitched squealing noises did not work well with him.[56]
[56]T214
The report set out the importance of consistent behaviour management.[57] It was very important to Joshua that he and other students she taught had a structured environment.[58]
[57]T215
[58]T216
· 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.[59]
[59]T217
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).[60]
[60]T220
· A Department of Education, Employment and Training Program for 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.[61]
[61]T222
· 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.”
It was 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.[62]
[62]T224
· Cranbourne Specialist School – Program Support Group Meeting July 2003 relating to Joshua Mason.
It was 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.
· Marnebek Physical Restraint Record Form dated 16 November 2005.
It was noted Joshua was restrained intermittently for 20 minutes. He was in the courtyard calling out to another student trying to stir him 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.[63]
[63]T230
Mr Pratt
119 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.[64]
[64]T400
120 Mr Pratt was aware that Erica had a high-pitched squeal.[65] He agreed that could well create an immediate and obvious problem for Joshua.[66] He agreed leaving her in proximity to Joshua created an immediate and obvious problem.[67]
[65]T396, T405
[66]T450
[67]T405
Ms Winfield
121 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.[68]
[68]T454
Findings
122 I have reached the following conclusiosn on the basis of the above evidence.
123 It is 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.
The class handover
The Plaintiff
124 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.[69]
[69]T47
125 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.[70]
[70]T95
126 On starting the new year, the plaintiff had just the two girls in her class, Erica and Michelle.[71] 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.[72]
[71]T51
[72]T52
127 Before having been shown the February class list,[73] 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[74] and attending four days in total before the said date.[75]
[73]First produced during cross-examination
[74]T52
[75]T56
128 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 him for Jacob.[76] When Joshua turned up, she knew his name and that he had autism.[77]
[76]T112
[77]T131
129 There was no handover of Joshua. The plaintiff was just told by a principal staff member he was coming.[78] No documentation relating to Joshua was provided to her.[79] She found out that he was epileptic after he had been put in time out after the assault on the said date.[80] 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”.
[78]T53
[79]T54
[80]T127
130 The plaintiff commenced the email by stating:
“You are not the easiest person to talk too (sic) but as I no longer care if I am asked to move on because of being out spoken, I am sending you this my thoughts.
It has 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 concern.
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 part time basis. The teacher, a casual relief was not qualified in special education and was therefore unable to know what change,(sic) were necessary so things were allowed to continue.
As a 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[h]ether 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 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 sho[o]t the massager (scil messenger)), you know this through your leaders and co-ordinators.
This is the ecological survey for my class:-
1* with much deliberation I work with the therapist to develop a program. I know that my class and I depend on the speech therapist and the occupational therapist. I cannot learn to communicate with my student without Amanda showing me how!!! I 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 context of the need and demonstrating a solution.
2* an uninformed change to my time table to satisfy a need else where has cost myself and risked my student’s learning potential.
3* I was told I have no say in this change and indeed I have not. I am not permitted to state how this will affect my students. Instead I am told that it will not effect me so why I am (sic) being difficult.
This is how it affects my class and me.
a)The students whom are over whelm[ed] 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 I believe them entitled to an equal curriculum.
c)Most importantly I as their teacher can not learn how to communicate with my students by watching and learning from Amanda!![81] This now affects every thing they learn and all I do with them, how I teach them to communicate the wants, needs, and desires!!!
[81]T64 – the plaintiff could not recall if she was the speech therapist or occupational therapist
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
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.[82]
[82]T65
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:[83]
“Disagreements with the principal may lead to less help or less desire for you at the school.”[84]
[83]T149
[84]T150
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.”[85]
[85]T151
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 to take over in a classroom where no follow up of students needs and habits has taken place.”[86]
[86]Full text at paragraph 267
Professor Roberts
136 Professor Roberts was critical of both the documentation that was provided and that which was lacking on the handover of Joshua.
137 In her view, if there was challenging behaviour, a behaviour support plan should be done on an ongoing basis and be constantly evaluated and reviewed.[87]
[87]T321
138 It would be very relevant to have an up-to-date behaviour support plan, given concerns about Joshua’s behaviour after April 2007, because otherwise there was no way of knowing how effective the plan had been.[88]
[88]T323
139 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.[89] 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”.[90]
[89]T329
[90]T330
140 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.[91]
[91]T344
141 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.[92]
[92]T348
142 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.[93]
[93]T320
143 The December document was an Individual Learning Plan, not a report on its success or otherwise.[94] 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.[95]
[94]T349
[95]T349
144 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.[96]
[96]T322
145 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.[97]
[97]T328
146 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.[98]
[98]T345
147 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.[99]
[99]T333
Mr Pratt
148 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.[100]
[100]T357
149 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.[101]
[101]T360
150 Mr Pratt agreed Jacob was a late addition to the plaintiff’s 2008 class, having first attended on 7 February 2008.[102]
[102]T384
151 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.[103]
[103]T361
152 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.[104] There would have been the learning plan and positive behaviour support documents.[105] Behavioural management plans would be done regularly.[106] It was possible that assessment of Joshua may have been difficult with a casual relief teacher at the end of 2007.[107]
[104]T378
[105]T361
[106]T400
[107]T399
153 At the 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.[108]
[108]T376
154 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.[109]
[109]T430
155 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.[110]
[110]T427
156 Mr Pratt thought the plaintiff was wrong about there being no handover. There would still be consultation between therapy staff, including Ms Winfield, who had worked with the students previously. He could not imagine putting someone in a room and saying “well, work it out”.[111]
[111]T428
Ms Winfield
157 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
158 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.[112]
[112]T179 – 180
159 Behaviour management plans were worked out mostly by the class teacher in conjunction with the parent, the assistant principal and also classroom assistants.[113] Joshua’s plan did not have to be amended because violent behaviour was not normal for him and was related to his medication.[114]
[113]T196
[114]T197
160 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.[115]
[115]T239
161 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.[116]
[116]T239
162 New classes were usually allocated around the beginning of December. It was quite okay to watch your potential students and talk to their current teacher.[117]
[117]T265
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.[118]
[118]T464
164 Star charts which were also kept were records of a student’s positive behaviour.
165 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.”[119]
[119]T464
Findings
166 I have reached the following conclusions based on the above evidence.
167 I 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 plaintiff’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 needs students in a different area of the school.[120] Her degree focussed on curriculum and did not include any training as to how to deal with high needs students.[121]
[120]T129
[121]T123
170 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
171 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]
[122]T379
172 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.[123]
[123]T407
173 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]
[124]T407
174 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 adequate way.[125]
[125]T411
Professor Roberts
175 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.[126]
[126]T300
176 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]
[127]T347
177 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.”[128]
[128]T299
178 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]
[129]T350
179 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 stressor. So you would certainly think very carefully about taking them out of the school with that other student.[130]
[130]T350
Ms Forrest
180 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.[131]
[131]T220
181 Ms Forrest had not come across very experienced teachers who found class dynamics a problems in early days.[132] 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.[133]
[132]T258
[133]T220
182 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.[134]
[134]T221
Ms Winfield
183 Ms Winfield recalled Joshua used to get upset with Erica’s screeching. This was gradually learned as the first term in 2008 progressed.[135]
[135]T450
184 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.
Joshua’s behaviour in 2008 prior to the assault
The Plaintiff
185 Joshua kicked other students on a number of occasions. This would have been witnessed by Ms Winfield at times.[136]
[136]T101
186 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.[137]
[137]T117
187 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.[138]
[138]T103
188 The plaintiff told Kathy Weston and the occupational therapist about Joshua kicking Erica. They told her they were working on “this behaviour problem”.[139] The plaintiff was told to make sure Joshua’s shoes were removed.[140] 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.[141]
[139]T61
[140]T101
[141]T102
Ms Winfield
189 Ms Winfield, who had previously been the aide in Joshua’s class in 2006 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]
[142]T442
190 Ms Winfield could recall Joshua “kicking out” in 2008 on at least two occasions after the assault.[143] Later in the year, he kicked Erica in the head whilst they were in the courtyard. She could not recall if there was a report made of that incident.[144]
[143]T443
[144]T451
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[145] rather than just removing Joshua from the class.[146]
[145]T360
[146]T381
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.[147] Taking his shoes off was not a management strategy.[148]
[147]T365
[148]T365 – 366
193 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.[149]
[149]T380
Findings
194 I have reached the following conclusions on the basis of the above evidence.
480 In her report of May 2008, Ms King referred to the two assaults and noted that in the second, the plaintiff was bruised, in pain, and thought that her neck would break. Following this incident, the muscles in her throat felt tight and she felt like she was being throttled.
481 On 26 May 2008, the plaintiff called Ms King and advised that there had been another incident in the class when one of the male students hit one of the other teachers and had threatened the plaintiff.
482 Ms King diagnosed post-trauma symptoms and Depression, Severe Anxiety and stress reaction. She thought the plaintiff was being re-traumatised by working in her current work environment and would strongly recommend she not return to a work environment where the students have severe behaviour management problems and there is a high probability of aggressive and violent behaviour.
483 Professor Damodaran reported in March 2010, having seen the plaintiff multiple times since July 2008. She was then prescribing Effexor, an anti-anxiety medication, for the plaintiff.
484 Professor Damodaran described the first assault and a second where a female student grabbed and twisted the plaintiff’s neck. By the end of that week, the plaintiff required three weeks off work. On her return to work, she was taunted by certain boys in the class. She felt that the school did not offer her assistance or support and she stopped working some time in May 2008.
485 Professor Damodaran noted that there was an expectation to tolerate aggressive and assaulted behaviour within the classroom due to the special education nature of the plaintiff’s job. The plaintiff reported her concerns were not taken seriously and she was not offered alternatives within the school environment. She advised that the specific incidents were the breaking point for her emotional stability and sense of confidence. She felt that her initial concerns were not treated seriously by the school.
486 The plaintiff described herself as a serious person with an interest in various hobbies like restoration of furniture, collecting things and reading. She was a proud person who focussed on her career and managed her adversities and development challenges by studying further and becoming a teacher.
487 Professor Damodaran noted that over the treatment period, the plaintiff had shown minor and modest improvement in attempting to secure an appropriate job; however, she could not contemplate returning to her former role. She had significant avoidance symptoms. Her mental state remained fluctuating, with occasional periods of agitation, anger and low mood, and other periods of improved motivation. She also complained of tension-type headaches.
488 Professor Damodaran diagnosed an Adjustment Disorder with Mixed Anxious and Depressed Mood. He thought the plaintiff’s current capacity was quite unpredictable and fluctuating. She then needed ongoing treatment with medication and psychotherapy.
489 The plaintiff first saw Robert Curtis, psychologist, in late 2010. She now sees him every couple of weeks. He tries to help her put things in perspective and help her understand her situation and not blame herself.[390]
[390]T83
490 Mr Curtis treats the plaintiff under a general practitioner mental health plan from Dr Holliday. As of May 2015, he had seen her seven times this year.
491 In his October 2014 report, Mr Curtis noted that the plaintiff saw Dr Parsonage, a psychiatrist, in Port Macquarie in 2011, who recommended continued psychological therapy and further psychiatric review.
492 Mr Curtis thought the plaintiff continued to struggle with the impact of past trauma and experienced bouts of Major Depression with symptoms ranging from moderate to extremely severe. Although her baseline involvement in community activities had improved over the previous four years, she remained highly prone to becoming emotionally distressed and overwhelmed.
493 Mr Curtis thought that the plaintiff was not capable of employment on the open market. In his view, her condition would only slowly improve over time and may be prone to setbacks, given unfavourable stress. He noted the plaintiff was successfully working towards a graduated return to community and social activities. In his view, her personal issues could cause her extreme anxiety and distress, in particular, where conflict could potentially arise or was perceived. He noted she actively avoided those situations. She remained highly distrustful of people and overly sensitive to issues around personal safety and perceived aggression.
494 Mr Curtis noted that although the plaintiff has effectively communicated over difficult matters involving failed IVF attempts and then a relationship breakdown, this was with a partner of some four years whom she had learned to trust.
495 Mr Curtis reported in May 2015 that the plaintiff continues to present at periodic risk of self harm with suicidal ideation which he is monitoring with her general practitioner. He noted her response to treatment had been complicated by the many ongoing insurance and legal process demands that had confronted her over several years.
496 Dr Holliday, from Albert Street Medical Centre in Taree, reported in October 2014, confirming he had looked after the plaintiff since January 2010.
497 Dr Holliday noted that since the assault, the plaintiff had lived with constant pain and she had been very focussed on the avoidance of conflict and other triggers. He thought one could say those injuries had reshaped her life and identity. He noted the plaintiff was a highly intelligent and altruistic person, and the failure of the Victorian authorities to protect teachers and other students compelled her to make such a claim despite the trauma that such a contest brought.
498 Dr Holliday noted it had been difficult to have the plaintiff engage with psychiatrists, partially due to her strong opinions, but also due to her tendency to use avoidance as a defensive mechanism.
499 Dr Holliday then thought the plaintiff would need long-term psychological support. He considered that she was also likely to require neurosurgical attention to her cervical and spinal injuries. That was not in the foreseeable future, only to be kept in mind during negotiations.
500 Dr Holliday suspected the plaintiff’s mechanical injuries had stabilised, but would make the usual degenerative decline more rapid. He thought her mental health injury caused a fluctuating level of distress and at that time, she had suicidal ideations. Dr Holliday noted, in particular, the failure of the authorities to respond to her case by ensuring the protection of other students and teachers stresses her, as do the processes of the Workers’ Compensation system.
501 Dr Holliday noted that in February 2014, the plaintiff reported problems with prolonged driving. Her upper limb and chest pains were worse. When holding her arms up, she had developed a sensation of ice in both arms, with some sharp lower sternal pains. This was diagnosed as cervical radiculopathy and chest wall pain.
502 Dr Holliday noted the plaintiff had troubles with her relationships due to her sensitivity to threat or control. She reported that listening to the political attacks on Julia Gillard was very traumatising due to her psychological injuries and early life experiences.
503 Dr Holliday then doubted the plaintiff would make significant improvement from her current state. He thought the potential for her psychological state to deteriorate was high. He believed she would never return to the workforce, and any future relationships also may be destabilised due to her PTSD.
504 Dr Holliday considered the plaintiff had no current work capacity due to her PTSD. Her physical injuries also contributed to this state.
505 In his most recent report of 3 April 2015, Dr Holliday noted when the plaintiff attended on 4 December 2014, she reported overwhelming anxiety from the processes involving her protracted claim. He noted many of the attendances she has had to undertake either in court or with medico-legal examiners were re-traumatising experiences for her, forcing her to revisit her past.
506 At that consultation, they discussed how the plaintiff had been knocked out during the assault. Dr Holliday felt it important to note that the plaintiff had never had a neuropsychologist’s assessment. He considered it may be some of the characteristics of the plaintiff’s responses reflected a traumatic brain injury and he felt that required formal consideration. At that consultation, he learnt there were, in fact, a number of assaults and one neck injury caused by the plaintiff’s students within the months before she had her breakdown.
507 On 19 January 2015, the plaintiff complained of headache and neck pain and was referred for physiotherapy.
508 On 23 February 2015, CGU rang Dr Holliday and left a message that the plaintiff was threatening self harm and requested that he address that issue.
509 When she attended on 12 March 2015, the plaintiff described extreme levels of stress. A mental health plan was completed later that month to enable her to access psychotherapy under Medicare.
510 On 30 March 2015, Dr Holliday noted the plaintiff complained of chest pain that appeared to be mainly musculoskeletal in origin and he referred her for physiotherapy.
Medico-legal evidence
511 Mr Miller, orthopaedic surgeon, examined the plaintiff in June 2010.
512 Mr Miller thought the plaintiff had suffered a musculoligamentous strain to the lumbar spine, an aggravation of degenerative disease, and probable disc injury at the mid cervical levels in the incident. He noted that she had a poor response to conservative measures and that her current regime would need to continue indefinitely.
513 Mr Miller thought the plaintiff could not return to her pre-injury employment and would only be fit for sedentary work, with the additional restrictions due to her adverse mental reaction.
514 Mr Miller noted that the plaintiff had previously enjoyed cycling and photography. She still enjoyed photography but was unable to continue with cycling. He considered that she would have some reduction in capacity for pre-injury leisure and recreational pursuits.
515 In February 2011, the Medical Panel concluded the plaintiff had a psychiatric impairment of 15 per cent resulting from the accepted psychiatric injury, having diagnosed a Chronic Adjustment Disorder with Anxious Mood and some traumatisation features relevant to the accepted psychiatric injury on the said date.
516 The plaintiff was examined by psychiatrist, Dr Walton, in June 2014.
517 Dr Walton noted the plaintiff was obviously distressed on examination. She had difficulty sustaining concentration. There was a cognitive deficit secondary to mood disturbance, although intelligence was normal.
518 The plaintiff thought the future was not within her control. She was concerned she would be an unreliable attendee at work in an unpredictable fashion because of her continuing psychiatric problems. She was particularly wary that people were “time bombs”.
519 Dr Walton’s preferred diagnosis was of PTSD, albeit presently in a residual phase. He noted that, unfortunately, the plaintiff had enjoyed a modest improvement only in her symptoms and had not retrieved a meaningful capacity for work. In his view, the prognosis was guarded at best. He thought that whilst there had been a modest improvement overall, the plaintiff remained substantially disabled and that it seemed likely this would persist for the foreseeable future.
520 Dr Walton noted that the plaintiff had a hobby interest in making clay tiles and had been attending a local craft centre to use the kiln and also as a social exercise to make new friends. She was achieving some success in that regard. Due to her neck pain, she could no longer ride a bike and had forsaken kayaking and dancing. Playing the Congo drums was on hold.
521 Dr Walton thought that the plaintiff would remain vulnerable to an adverse reaction and there was likely to be deterioration in her mental state should she be exposed to other significant trauma. He did not see her as very fragile in that regard. He noted she seemed to have weathered the recent relationship failure and relocation of residence reasonably well. Thus, he thought it was more likely that her symptoms would remain much the same as at present rather than an inevitable deterioration.
Investigations
522 An MRI scan of the cervical spine carried out in March 2008 showed moderate degenerative change of the C5-6 disc space with the moderate left posterolateral disc protrusion causing a C6 foraminal stenosis. There was mild degenerative change in the lower thoracic disc space and at L3-4 and an old L4 limbus vertebra was identified.
523 There was a further MRI scan of the cervical spine on 18 July 2009. It was reported there were features of minor multilevel disc degeneration at C5-6 and C6-7 with minor encroachment upon the anterior aspect of the central canal. There was no high-grade canal stenosis or focal neural compromise seen and no features to indicate acute focal trauma in the region.
The Defendant’s medico-legal evidence
524 Mr Nye, neurosurgeon, examined the plaintiff in June 2008.
525 On examination, there were no neurological abnormalities.
526 Mr Nye considered the plaintiff had mild degenerative disease in the cervical and lumbar spine which were constitutional and age related. There was a possible aggravation of this condition in the assault which had resolved.
527 Mr Nye thought there was evidence of a significant psychological reaction to the assault which resulted in an incapacity for pre-injury or alternative duties.
528 In November 2010, the Medical Panel found the plaintiff was suffering from cervical spine dysfunction and, consequently, cervicogenic headache, with no evidence of radiculopathy or myelopathy in the setting of cervical disc degenerative disease related to the residual effects of a partially resolved soft-tissue injury of the neck relevant to the alleged neck injury.
529 In the Panel’s opinion, the plaintiff was not now suffering from any medical condition of her back relevant to any alleged back injury. She was suffering from cervicogenic headaches relevant to the alleged injury. Further, the plaintiff was currently not suffering from any medical condition of the groin relevant to the alleged injuries.
530 The Panel concluded that the plaintiff was suffering from a PTSD relevant to the alleged Anxiety and Depression and PTSD injuries.
531 The Panel thought the plaintiff’s employment could have possibly been, and was in fact, a significant contributing factor, to a now resolved soft-tissue injury of the lower back and to consequential cervicogenic headaches.
532 The Panel thought neither physiotherapy nor massage were appropriate or adequate medical services for plaintiff’s physical condition, but a time-limited, four to eight-week multidisciplinary pain management program, including both psychological and physical treatment, was appropriate and adequate.
533 The Panel considered the plaintiff did not have a current work capacity. Incapacity for work was still materially contributed to by a cervical spine dysfunction and PTSD, and it was likely the plaintiff was to continue indefinitely to have no current work capacity.
534 Dr Chris Grant, psychiatrist, examined the plaintiff in September 2014.
535 The plaintiff told him that following the assault, she returned to work a few days later on modified duties and a female student pulled at her head and neck until it cracked.
536 The plaintiff described violent nightmares and ongoing loss of appetite. She still had some tension pain in her neck radiating at the back of her skull and spreading over her shoulders. She got easily distressed and reacted poorly to novel or unexpected incidents. She often felt angry and she disliked being in crowds. She retained the capacity for pleasure and satisfaction and thought she had some sense of humour and a capacity for humour.
537 In terms of activity, the plaintiff occupied herself with her artwork but maintained few other relationships, although she knew a few local people. She said she could be occupied with her artwork up to all day, but that focus tended to decline when she was reminded of the litigation. She read and wrote a lot. She was independent in personal self care. She went to the gym at quiet times. She could drive, but avoided public transport.
538 The plaintiff told Dr Grant her relationship of four years ended, because her partner was undemanding and did not ask much initially, but then wanted a child and they were trying for a pregnancy. She had had two miscarriages and then he wanted someone else. The relationship broke down because she stopped doing as she was told and she stopped living his life.
539 Dr Grant noted the plaintiff’s manner of interacting had a distinctly angry and passive manner and her affect was of a very limited range. Her judgment was intact but skewed by anxiety. There were no signs of a psychotic illness.
540 Dr Grant thought the plaintiff appeared to have a PTSD which still appeared to be related to the incident. That condition appeared to restrict her leisure and social activities.
541 Dr Grant thought it seemed unlikely the plaintiff could ever return to work in her pre-injury duties or any classroom teaching work.
542 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in October 2014. She then complained of ongoing neck pain, occipital headache and tingling in her leg.
543 The plaintiff told Mr Dooley about the assault and a second incident, causing aggravation to the neck and head region.
544 On examination of the cervical spine, there was some tenderness and restricted movement. Neurologically, examination was normal.
545 Mr Dooley thought the plaintiff suffered soft-tissue bruising and an aggravation of underlying degenerative disc disease of the cervical spine. As a consequence from an orthopaedic point of view, she would note some ongoing intermittent neck pain.
546 Mr Dooley thought it possible the prolapse occurred in the incident. Overall, however, the mechanism of injury was not consistent with sustaining a prolapse and it was more likely that the prolapse was present as part of the natural evolution of degenerative disc disease and was asymptomatic. He believed the plaintiff had an understandable psychological reaction to her situation and that reaction significantly influenced her ongoing symptoms.
547 Mr Dooley considered the majority of the plaintiff’s current presentation related to her psychological condition. From an orthopaedic point of view, he expected her to note difficulty carrying out a lot of heavy physical activity and a lot of activity at, or above, shoulder level, but expected she would be able to engage in a range of light recreational and leisure activities.
Overview
548 The plaintiff’s evidence about the assault was unchallenged and there was no medical opinion that, in any way, suggested any other cause or factor of any relevance for the plaintiff’s present psychiatric condition and her spinal complaints.[391]
[391]T607
549 Further, there is no suggestion that prior to the assault, the plaintiff suffered from any psychiatric condition or cervical spine problem.[392]
[392]T29, T605
550 The consensus of medical opinion is that the plaintiff continues to suffer from Post-Traumatic Stress Disorder, Anxiety and Depression. Her condition is chronic and of some severity. Weekly payments continue to be made in relation to that condition.
551 The plaintiff wore sunglasses in Court whilst giving her evidence. On two occasions, she broke down: the first when describing how she unable to protect Erica in the assault;[393] and later, when challenged about her work motivation.[394]
[393]T70
[394]T150
552 I accept that to that point in her evidence, the plaintiff had been doing her best to answer questions as best she could and there was then a very natural and obvious breakdown, particularly in relation to her commitment to special needs teaching.
553 Since the assault, the plaintiff’s main problem has been avoidance behaviour. She has experienced panic attacks. She is very anxious at how her life has ended up, having put so much effort into a career in special needs teaching which has now been lost to her.
554 The plaintiff is very frightened of going out in public and meeting people. She has a continuing fear of people being behind her and thus she avoids crowds and noisy situations. She tries to go shopping when other people, particularly children, are not around. She walks her dogs where she knows there will not be people around. She attends the kiln when she knows her trusted group of friends will be there and they form the basis of her very limited social activity.
555 I accept the plaintiff presented as someone who was very severely disabled by the avoidant strategies she undertakes every day. The relationship with her only family member pre-injury, her son, Boyd, has been severely disrupted by her psychological injury.
556 The plaintiff has ongoing problems with her memory in carrying out simple day-to-day tasks such as paying credit card bills. Her sleep is disturbed by frightening nightmares about the assault and being attacked. Watching violent events on the television confirms these fears.
557 Since the assault, the plaintiff has required ongoing psychological treatment and she has been under the care of a psychiatric at different stages.
558 The plaintiff was prescribed Effexor until about 2012, but ceased taking it as it made her “feel like a loser” and she did not feel in control. She now does not take any medication for her psychiatric condition, but takes over-the-counter painkillers for her neck injury.
559 Whilst still in Victoria following the assault, the plaintiff was under Professor Damodaran’s care and also the psychologist, Mary King. On moving to New South Wales, she had some psychiatric treatment early on but has been receiving ongoing regular counselling from Mr Curtis.
560 General practitioner, Dr Holliday, detailed the ongoing serious nature of the plaintiff’s mental problems, including the threat of self harm in February this year related to the processes involved in her claim which forced her to revisit the trauma of the assault.
561 The level of these symptoms was not challenged in cross-examination but it was submitted that with that evidence and comments of a similar nature made by Mr Curtis, it would be open to make a finding that bringing litigation to an end might have a positive influence in the plaintiff’s life, removing a major stressor.
562 However, neither practitioner noted there would be any significant improvement of the plaintiff’s mental condition following finalisation of litigation.
563 When Dr Grant examined the plaintiff last year, he thought her condition was persistent and stable.
564 Dr Walton considered the plaintiff’s prognosis was guarded at best and she remained substantially disabled and it would seem likely that that will persist for the foreseeable future.
565 Accordingly, I am satisfied the psychiatric effects of the assault will be ongoing for some time.
566 In my view, the plaintiff’s psychiatric condition has severely impacted upon her enjoyment of daily activities, both at home and at work.
567 Whilst the plaintiff was able to have a relationship with her most recent partner, that took place in a very supportive environment in a quiet country town of 600 people where the plaintiff also had the support of his family. During that time, the plaintiff was still relatively socially isolated, as her son confirmed, having visited her.
568 Whilst the relationship breakdown was upsetting, neither current treater noted this had not resulted in any significant downturn in the plaintiff’s psychiatric state, as counsel for the defendant submitted.[395]
[395]T561
569 Although counsel for the defendant acknowledged quite obviously the plaintiff suffered psychological injury as a result of the assault, nonetheless it was submitted the plaintiff has retained significant hobbies and interests which served to contain damages.[396]
[396]T564
570 Whilst it may not be “all doom and gloom” in the plaintiff’s life as was submitted, in my view, the plaintiff’s activities are very limited.
571 The plaintiff attends the kiln only once a month when she knows her friends will be there. She collects things for a hobby and spends time at home reading and writing. She walks the dogs and does the shopping when it is quiet. She now has do all domestic tasks on her own and quietly copes. Her contact with her son is very limited.
572 In my view, all in all, the plaintiff has a very isolated lifestyle, keeping pretty much to herself – a far different picture to her situation pre assault, where she was working hard and enjoying a range of activities and a full social life, as her son confirmed.
573 The plaintiff has not returned to work since May 2008 and continues to be in receipt of weekly payments for her psychiatric condition. There has been no suggestion that the plaintiff is fit to return to work on psychiatric grounds.
574 Counsel for the defendant acknowledged the plaintiff does not have a capacity for work in her pre-accident career as a teacher, but submitted she is still doing things that give her enjoyment.[397]
[397]T565
575 Importantly, Dr Grant, who saw the plaintiff recently on the defendant’s behalf, thought it seemed unlikely the plaintiff could ever return to her pre-injury duties or any classroom teaching work.[398]
[398]T609
576 I accept that prior to the assault, the plaintiff loved her job. She was genuinely seeking to advance her career, trying to further improve her skills, planning to study play therapy. Her evidence in this regard was corroborated by her son, Boyd, and was unchallenged.[399]
[399]T610
577 I accept that the plaintiff’s work was particularly important to her, given it was a relatively late vocation, undertaken in difficult circumstances.
Cervical injury
578 The plaintiff suffered soft tissue bruising and aggravation of underlying degenerative disc disease of the cervical spine in the assault. MRI scanning three weeks post injury noted a disc prolapse centrally and towards the left side of the C5-6 level.
579 Since the assault, the plaintiff has suffered constant headaches associated with her neck pain. She takes painkillers frequently to try to alleviate the pressure she feels into her neck and head.
580 The consensus of recent medical opinion is that the plaintiff has difficulty carrying out a lot of physical work and a lot of activity at or above shoulder level as a result of cervical pain.
581 The plaintiff was not challenged as to the level of her cervical complaints.
582 The plaintiff had two periods of physiotherapy following the assault with Mr Chia from 14 March until 29 August 2008 and then from 1 June 2009. She has recently resumed treatment in Foster, having been earlier reluctant to attend yet another health services profession.
583 In terms of prognosis, Mr Dooley expected the plaintiff would continue to note some ongoing intermittent neck pain which would interfere with other than light recreational and leisure activities.
Question 5
What is an appropriate sum for damages for pain and suffering?
584 Counsel for the defendant did not suggest an appropriate figure for damages.[400]
[400]T566
585 Counsel for the plaintiff relied on the recent decision of Swann v Monash Law Book Co-operative(t/as Legibook),[401] where Dixon J commented on the decision of the Court of Appeal in Willett v Victoria,[402] where the majority agreed with the observations of a differently constituted Court of Appeal in Amaca Pty Ltd v King[403] that, over time, modern society has come to place greater value on the loss of enjoyment of life and experience of pain and suffering than it did before.
[401][2013] VSC 326; T610
[402][2013] VSCA 76
[403][2011] VSCA 447
586 It was submitted, in comparative terms, the plaintiff’s situation in Willett, where he was awarded $300,000, was not dissimilar to the plaintiff’s situation in the present case.[404] Further, it was submitted in the present case, the plaintiff was worse off psychologically.[405]
[404]T612
[405]T95
587 Whilst not commenting on figures, counsel for the defendant submitted that the assault and its repercussions should be put into the context of the second incident and that the nature of the plaintiff’s complaints subsequent thereto would call for a discount of damages.[406]
[406]T560
588 It was submitted it was really impossible to discover from the medical evidence whether the prolapse occurred in the assault or the second incident. On that basis, the second incident should be viewed as an aggravation of the physical and psychological injury in the assault and that would call for a discount on damages, because the second incident is not part of the litigation.
589 Reliance was placed on the plaintiff’s description to treaters and also medico-legal examiners of the second incident - Ms King, Mr Miller and Professor Damodaran. Further, reference was made to the fact the plaintiff did not undergo physiotherapy until after the second incident.[407]
[407]T559
590 In response, counsel for the plaintiff relied on Purkess v Crittenden,[408] in which the Court placed an evidentiary onus on the defendant to demonstrate that the effects of the assault were overtaken or in some way limited by the subsequent second incident.
[408](1965) 114 CLR 164 – T605
591 There was no analysis by any doctor to enable me to reach the conclusion suggested by counsel for the defendant.
592 In any event, the plaintiff complained to Dr Williams on the said date of a neck injury. There was no evidence to suggest that injury would have resolved before the happening of the second incident. I accept that the assault was a cause of the plaintiff’s cervical injury and also her psychiatric injury.
593 There was no satisfactory medical opinion which would enable me to undertake the disentangling exercise which a defendant is required to establish in a case such as this.
594 In those circumstances, I find that there is no evidentiary basis to undertake the discounting process or the investigations of the sort suggested by counsel for the defendant.
595 As a result of the assault, the plaintiff has experienced a very significant psychiatric reaction, requiring continuing treatment and causing considerable restriction on her daily activities, in particular, precluding her from returning to the workforce in a field which gave her a great deal of pleasure and satisfaction.
596 Additionally, the plaintiff has suffered ongoing cervical pain which has required conservative treatment, and this condition will persist indefinitely.
597 In my view, an appropriate figure for damages for pain and suffering is $265,000 (Two Hundred and Sixty Five Thousand Dollars), the majority of which relates to the plaintiff’s psychiatric condition.
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