Fatal stabbing leads to $294,000 OH&S fine
By Joan Lemaire
A fatal stabbing has seen the Department of Education and Training and the Department of Juvenile Justice fined a total of $294,000 for breaching the Occupational Health and Safety (OH&S) Act.
The prosecution arose out of an incident in a juvenile justice centre in 1999 where a student detainee stabbed Scott Bremner, a teachers aide, during a hospitality lesson. Mr Bremner died as a result of the injury.
Both departments pleaded guilty to the charge of breaching section 15(1) of the OH&S Act which means they failed to ensure the safety and welfare of employees at their place of work.
The case was heard by Justice Staunton and her judgment deals with a number of key issues.
Foreseeability of risk
There was considerable documentation of violent behaviour by the student detainee. This included an incident at her previous school and incidents after her detention in Yasmar Juvenile Justice Centre. She had been detained in Yasmar after being charged with "having custody of a knife in a public place, wounding with intent to murder and attempted murder in relation to an attack on her natural mother".
There was also documentation of the student detainee being involved in a number of violent incidents.
The WorkCover prosecutor argued that the risk of harm was "known, foreseeable and the relevant risk to safety foreseen".
Justice Staunton agreed and said the student-detainee's "impulsive, violent and aggressive behaviour characterised by a propensity to use knives and sharp objects during such outbursts lead inescapably to such a conclusion".
On this basis the Judge took the view that the offence, in breaching the OH&S Act, was of a serious nature. Both the previous OH&S Act and the current legislation require employers to take action to control or eliminate risks.
Competing legislative requirement
Justice Staunton recognised that both the Department of Juvenile Justice and Department of Education and Training have a range of legislative requirements. She said: "Much was made before me ... as to the tensions prevailing within the defendant's agencies balancing as it were their competing legislative obligations to the detainees to provide them with a custodial environment oriented towards rehabilitation underpinned by vocational employment and educational programs and the defendant's obligation to provide a safe place and system of work for its employees under the Occupational Health and Safety Act."
Her Honour referred to a recent decision of Justice Schmidt which dealt with assault on staff by a psychiatric patient. Justice Staunton said: "The views expressed by Her Honour on where an employer's primary obligations lie when that balance demands competing considerations are, I believe, correct. They must come down on the side of the best interests of the employees in providing them with a safe place of work."
Informing staff of risks
The evidence pointed to the fact that the provision of information to staff at the school, particularly to the teachers aides, was inadequate. Justice Staunton said: "School staff should not be excluded from information relevant to risk on safety considerations on the basis that it might prejudice their attitude to the detainee."
The provision of information on risks posed by the behaviours of any student in terms of harm to themselves, other students and staff is required under the OH&S Act 2000 in relation to the duty of employers to consult with employees over matters which affect their safety at work. The requirement that employees are to be consulted about matters affecting their health and safety is described in Chapter 3 of the OH&S Regulation 2001.
Risk management
The OH&S Regulation 2001 requires that employers adopt risk management systems. This means they must:
- identify the risks to the health and safety of employees and non-employees at workplaces;
- eliminate or control the risks; and
- review risk assessments and control measures.
Justice Staunton pointed to the failure of this process: "The end result in the situation before me in balancing those competing legislative considerations is not that DA [the detainee] or any other detainee be deprived of vocational educational opportunities. The issue is that a person such as DA should be properly risk-assessed, and with that knowledge and relevant input from the school staff, she be placed within a learning environment which both diverts and educates her while at the same time does not expose school staff to unnecessary and foreseen risk of harm. On all of the information known to the relevant agencies in July 1999, DA should never have been placed in that hospitality class on 23 July 1999."
What does this mean for schools?
There have been many circumstances where teachers, teachers aides and students have been injured as a result of violent behaviours of certain students. Regardless of whether the violent behaviours are intentional, they pose a risk to staff and students. Teachers have a right to information about these risks.
The OH&S legislation requires that these risks be controlled or eliminated. Control measures might include changes to the physical environment; additional resources including specialist support, training or extra staff; or the relocation of the student to a more appropriate setting. The legislation also requires that all employees who may be affected by these risks be consulted as part of the risk assessment process.
These factors need to be considered prior to the enrolment of students with a documented history of violence. When a student has been suspended as a result of a violent incident, control measures should be put in place prior to their return.
Justice Staunton's statement that DA "should never have been placed in that hospitality class" may point to the need to assess the risks posed by some students' behaviours prior to their inclusion in some subjects.
Federation has provided a leaflet, "Enrolment of Students with a Documented History of Violence" to all schools. Members may also contact Federation to obtain additional information and advice.
Joan Lemaire in an Industrial Officer.
For further information
October 2002 contents
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