RECORD OF INVESTIGATION INTO DEATH

Coroners Act 1995
Coroners Rules 2006
Rule 11 

I, Glenn Alan Hay, Coroner, have investigated the suspected deaths of

 BRENDAN WILLIAM DERMODY AND JACKSON KELTY

AT AN INQUEST held in Hobart on 25, 26 and 27 October and 15, 16 and 17 November 2010.

The Chief Magistrate directed me to investigate at the one formal inquest, the suspected deaths of two members of our community, BRENDAN WILLIAM DERMODY who would now be aged 30 years and JACKSON KELTY who would now be aged 19 years.

As a result of an initial Tasmania Police investigation it became apparent the suspected death of Mr. Dermody arose directly or indirectly from an accident at his place of employment in Tasmania and in circumstances where it is unlikely his suspected death is due to natural causes. I say ‘suspected death’ as his body and no trace of his remains has ever been found.

That same initial investigation disclosed that the suspected death of Jackson Kelty occurred in Tasmania at a time when he was held in the custody or under the guardianship of the Secretary (the Secretary) of the Tasmanian Department of Health and Human Services (the Department) pursuant to an interim order of a magistrate made in November 2007. As Jackson Kelty was a youth at the time, I will refer to him as ‘Jackson’ in the balance of these findings.

I have conducted and concluded a detailed formal inquest hearing. My onerous duties involve a close investigation into the lives or two loved members of our community. I express my sympathies to the families and loved ones of Mr. Dermody and Jackson.

On the 19 November 2010 I published, pursuant to sections 28(1) and 24(1) (ea) of the Coroners Act 1995, findings in respect of Mr. Dermody. At that time I indicated I would publish detailed reasons to support those findings at the same time as I handed down my findings and reasons in relation to Jackson. I also indicated that I would address any other relevant issues such as the identity of any person who may have contributed to his death (if any) and any recommendations I may make pursuant to section 28(2) (if any).

Overview and Section 28 (1) (a) to (e) Findings

From all of the evidence I am able to find that:

a. Mr. Dermody was born on the 25 July 1980 and was engaged to be married. He was employed as a carer by the Tasmanian Department of Health and Human Services.

b. Jackson was born in Hobart on the 13 September 1992

c. During the early afternoon of the 15 March 2008 Mr. Dermody was on Clifton Beach, south-east of Hobart in Tasmania. He was there in the course of his employment and was caring for two young persons both subject to ‘care and protection orders’ whereby they were under the guardianship and the care of the Secretary of the Department and as administered by Child Protection Services. Jackson was one of those two young persons. The other youth was aged approximately 7 years at the time and I will refer to him as "WH" in these findings and reasons.

d. While there is no direct evidence of them having done so, in all the circumstances of the evidence it most probable that both Mr. Dermody and Jackson entered the water at Clifton Beach on that day in adverse water conditions. Despite an extensive air, sea and land search over many months their bodies were never recovered.

e. Mr. Dermody and Jackson have not been seen since the 15 March 2008.

f. Human bones were later discovered in April and July 2008 at Clifton Beach. I am satisfied that some of those remains, including rib bones and an ulna, were positively identified by full DNA profile-matching as being Jackson’s remains. As a result of that evidence it is most probable that Jackson died at Clifton Beach south-east of Hobart in Tasmania on or about 15 March 2008. I am unable to determine the exact cause of Jackson’s death, but it is most probable that he drowned and that his death was not due to natural causes.

g. Other human bones later discovered could not be DNA profile-matched to any person but were consistent with a male of the age and physical stature of Mr. Dermody.

h. Given the circumstances surrounding the disappearance of Mr. Dermody and the lack of evidence unveiled throughout this inquest including any person having sighted him since that day or of him having accessed or activated any of his personal or business affairs, I find that he is presumed to have died on or about 15 March 2008 at Clifton Beach, south-east of Hobart in Tasmania.

i. I am unable to determine the exact cause of Mr Dermody’s death, but it is most probable that he drowned and that his presumed death was not due to natural causes.

Section 28 (1) (f) Findings.

Within the context of this section of the Coroners Act 1995 I do not identify any person as having contributed to the death of either Mr Dermody or Jackson. I have provided more detail about this within the text of my findings as follow. 

Recommendations as to possible ways of preventing further deaths or minimising  the risk of such deaths occuring in the future. 

I recommend that when out-sourcing the care of young persons with complex and exceptional needs or significant physical and/or other health disabilities, the Secretary require the potential or actual care providers to specifically address the following –  

  • to assess staff to child ratios in any such care situations, but especially in excursions to potentially hazardous areas; and
  • the training of staff in the particular care needs of each individual child and the assessment of risk to that child in any environment, and
  • a developed and documented policy about excursions and the management approval of such excursions, and
  • a developed and documented policy whereby management receive in a timely fashion and respond in a timely fashion to incident reports concerning the interactions between carers and children, and
  • a developed and documented policy to report to the Secretary relevant incidents involving the care and welfare of a child in care.

I have provided more detail about these recommendations together with comments upon work place practices and the care, supervision or treatment of Jackson within the text of my findings as follow.

THE CIRCUMSTANCES SURROUNDING THE DEATHS.

In about October 2003 Mr Dermody commenced his employment with the Secretary as a rostered carer in the ‘complex and exceptional needs’ program. He came to that program with a certificate 2 and 3 in Disability and Aged Care and a Workplace certificate 2 First Aid through St John’s Ambulance.

On 26 May 2006 he joined "Rostered Care", being responsible for the day to day care of autistic children. It is abundantly clear from all available evidence that he had an optimistic outlook on life and was an exceptionally active and capable carer, especially of children/youths with special needs and engaged children in healthy outdoor activities. In addition, he spent a lot of time caring for his family and was very active in many volunteer community roles. Mrs Kelty said of Mr Dermody and his fellow carers – "Jackson was always pleased to see them, they were always very kind to him and Jackson never complained about his carers, they were always attentive to his welfare and care, they were lovely men I knew Brendon well and respected him for the care that he took of Jack". 

Others described him as"a reliable and dedicated worker. If he ever needed help he would always ask for it, but rarely did. He was a loveable man and all the children he dealt with responded well to him".

He was a large man in stature with a commanding presence and it would seem he made few formal demands of his employer. He was a man and an employee who got on with things in a positive way. He was not particularly experienced in things aquatic.

Jackson was born in Hobart on 13 September 1992. His parents separated when he was about 4 years of age and following specialist intervention he was diagnosed as suffering from severe Kanners Syndrome (Autism). He remained in his mother’s care undergoing intensive weekly therapy and before the age of 10 had also been diagnosed with intractable epilepsy, dyspraxia (impairment of the ability to perform co-ordinated movements) and sever dysarthria (difficulty of articulating words due a disease of the central nervous system). As a result he was non-verbal and was taught alternative means of communication through typing and writing or carrying a book with words he recognised. At his schools, his mother trained staff in the alternate methods of communication.

As a result of Jackson’s health issues he was generally very difficult to manage. According to his mother, when he suffered partial complex epileptic seizures "he would simply run…….often placing himself in extremely dangerous situations". Further, following the age of four, Jackson continued to display inappropriate sexual behaviours, especially when under stress.

In 2005 Jackson was placed into respite care at a home in Lutana under a program operated and controlled by Disability Services. He was in that respite care for about 2 nights per week. Jackson’s behaviours continued to worsen to the stage where Mrs Kelty became concerned for her own safety and for Jackson’s siblings. From time to time she had to sedate Jackson. It is the evidence of Mrs Kelty that in 2007 she requested in-home help as he was becoming too difficult for her to manage, but this was refused.

In September 2007 Mrs Kelty held meetings with Disability Services and others from the Department, Child and Family Services, representatives from Jackson’s schools and others in a continuing effort to seek in-home help for Jackson. It is her evidence she became dissatisfied with progress and decided to leave a meeting and leave Jackson at the meeting. This required Child and Family Services to immediately take over Jackson’s care and the Secretary made application for an assessment order followed by an application for a Care and Protection Order which was granted on an interim basis, unopposed by Mrs Kelty. This order was made because Mrs Kelty could not cope with Jackson on her own. He was not subject to the order on account of him having suffered any harm or neglect. Jackson was placed full-time into the Lutana Respite Centre.

Mrs Kelty continued to care for Jackson for some nights in each week and on other occasions.

On or soon after 7 November 2007 Jackson was removed to an ‘Out of Home Care Rostered Care Placement’ house at Rokeby (known as ‘Duntroon’), where he appeared to be happy being cared for by four carers, including Mr Dermody. Jackson was the only person being cared for at that time and was a permanent resident of that place. Duntroon was provided and managed by the Secretary through Child Protection Services and I accept the evidence of Mr Oldfield and Mr Burn that it was specifically established to provide a home for Jackson.

Mr Dermody had applied for the position as one of the four carers for Jackson in the knowledge of Jackson’s disabilities and having spent one shift of 5 hours at the Lutana Respite Centre where he was mentored by a ‘buddy’ and according to the evidence of Mark Burn the buddy shift was ‘to observe the child in his environment and learn how to best communicate and manage him in a care environment".

Jackson continued to spend time with Mrs Kelty "around 6 days a week", staying over on occasions. It became usual for Jackson to spend the weekend days with his mother but go back to Duntroon for the nights.

In 2004 Mr and Mrs JP became the full-time carers of WH who was then aged about 5 years. WH was severely autistic and required full-time care. He could understand some levels of communication; however he is unable to speak. Mr and Mrs JP were not ‘foster carers’ as such in that WH was not subject to any order pursuant to the CYP Act and they had not adopted him. They were his carers under what Mrs JP described as a ‘host family program’ and were engaged through the Department of Disability Services. Mr and Mrs JP had weekend respite for WH when he went to the Lutana home each Saturday morning until Sunday evening. From time to time they had longer respite when they went away on holidays.

WH was made the subject of a Care and Protection Order in June 2007 but his daily care remained with Mr and Mrs JP. Like Jackson, this order was not made on account of him suffering any harm or neglect. In that regard both boys were unique within the Care and Protection model in that they suffered significant health disabilities.

In October 2007 a Team Leader from Lutana contacted Mr and Mrs JP to inform them that WH could no longer access Lutana facilities because they were having difficulties obtaining suitable staff and as WH was classified as having a weekly booking rather than being a permanent resident. Mr and Mrs JP were informed that WH would in due course spend his respite times at the Duntroon house once it had been set up and that he would be there with another young resident from time to time and they were to be cared for by a team of four carers, one of whom was Mr Dermody. I reject any suggestion that Mrs JP's evidence about this chain of events was in substantial and relevant error and that as such I should then give little weight to any subsequent recalls she had about care arrangements.

I adopt the submission of Mr Cox of counsel for Mrs Kelty that this was a unique circumstance, in that Child Protection Services found itself with the care of two severely autistic boys and they provided challenges ordinarily met by Disability Services through complex care arrangements. It is clear that CPS did not have immediate resources to cope and carers had to be found. Mr Stuart Oldfield was the Child Protection manager for the south-west region in March 2008 and he said – "It would have been preferable for Jackson to have been managed by Disability Services in complex care, but he was in Child and Family Services because of the Order. He was more of a disability client than a child protection client. Autism is not our expertise. Jackson and WH were unique and we had not had to deal with that before. There were no policies or structures regarding staffing ratios. There were no formal plans. There was handover from Disability Services staff to CFS staff and CFS staff had had one shift each at the Lutana home conducted by Disability Services".

And so it was that the Duntroon House establishment was created to cover this unique circumstance - to care for Jackson most of the time and also later to provide respite for WH’s carers.

I accept the evidence of Mrs JP that she was informed that Jackson Kelty would not be present during weekends but the boys might be together at other times, but generally not so. Witnesses Sloane and Keating also confirmed that in usual circumstances the two boys would not be present at the same time. Trial times were conducted between the two boys and Mrs JP is clear that on the first occasion there was some tension between the boys. Mrs JP was very clear that she was informed there would be two carers whenever the 2 boys were to be together. This was also the evidence of Mr Bannister, one of the carers. It was the evidence of other witnesses that it would have been preferable to have two carers when the two boys were together. In my view the weight of the evidence supports a finding consistent with the belief of Mrs JP.

During the long weekend at the end of January 2008, WH attended Duntroon from Saturday morning to Sunday evening and after that one trial that extended to Friday evening until Sunday evening in following weekends. A written report by Mr Dermody on 31 January 2008 reflected his then optimism about the future relationship between the boys – "it looks like the boys will get on well". His optimism changed later, especially in the several weeks before 15 March. I will refer to that change later in these findings.

I accept that the physical and general care each boy received was by a dedicated team of male carers, all of whom volunteered for the position in full knowledge of the disabilities of each and such care was appropriate and has not been criticised. The rostering of the four and later five carers was coordinated by Department officers Sloane and McDonald on the basis either one or two of the boys would be present at any time and they were aware of the capabilities and behaviours of each child and in the knowledge of the skills experience and capacities of the small team of carers. Further, there was no set or recognised formula or guideline for staff/child ratio. It is also clear that from time to time there were difficulties in ensuring carers were available to fulfil roster requirements. Officers Sloane and McDonald did the best they could with the resources available.

In March 2008 Mr and Mrs JP made arrangements to be away on 10 days leave and consequently WH commenced his respite time at Duntroon over the weekend commencing Friday 6 March. He then went to Lutana for the following Tuesday and Wednesday nights and then back to Duntroon.

At some time shortly before the weekend of 15th March 2008 Mrs Kelty was evicted form her home and was in emergency accommodation. Mrs Kelty agreed with Jackson’s case worker, Monica Scott that she would not have Jackson over that weekend and he was to stay at Duntroon. Accordingly, the two boys were to be together for the entire weekend and as I understand the evidence this was the first time that had occurred and it occurred in out of the usual circumstances.

On the morning of Friday 14 March, Justin Cooper was rostered to work a 48 Hour "buddy" shift with Mr Dermody at Duntroon. I pause to note that in my view, while Mr Cooper’s evidence may have been in error in some aspects or at least not matching the recall of some other witnesses, generally I found him to be an honest and reliable witness and a caring person to be in charge of such children.

By the evidence of his fiancée, Mr Dermody commenced his shift at Duntroon at 8.00pm on the 14 March.

Both boys were collected from school that afternoon and Jackson was delivered to his mother for a short access visit while WH was taken to the beach for a swim and a walk. Jackson was later picked up by his carers and both boys spent the night at Duntroon.

At some time between Friday afternoon/evening 14 March and about 9.30am on Saturday 15 March, Mr Cooper received a telephone call from a Department officer informing him that because of other staff illness he would not be completing the shift at Duntroon with Mr Dermody and was directed to another place for the remainder of his shift. The identity of this Department officer is unclear and there was no evidence of the call having been logged by any responsible person. It is Mr Cooper’s evidence it occurred on the Saturday morning whereas there is evidence from others that it may have occurred the previous late afternoon/evening. I can make no particular finding about the time or the identity of the officer however, from all the evidence it is clear Mr Cooper was instructed to leave Duntroon and he was not there from at least following Saturday morning at around 9.00am. Further, I accept Mr Cooper’s evidence that he in a very definite sense informed the Departmental officer that he was concerned about leaving Mr Dermody alone with the two boys – "the boy’s needs are too great for one carer".

The written report by the Secretary dated 20 March 2008 leads to the inference that a carer known as ‘Vicki’ was transferred from the St John’s Avenue care facility to another facility known as ‘Corina’ and that Mr Cooper was her replacement at St John’s Ave.

It is the evidence of Leah Woolford, Child Protection Worker, that on the weekend of 15th and 16th March 2008 she was the rostered child protection worker for the entire state, with primary duties to attend to urgent child protection matters, but also to take calls from carers "calling to report someone sick or asking for extra support. It was for urgent child protection issues. It was not designed for carers who were having issues in the houses". At 11.51am on 15 March she received a call from Mr Dermody requesting "an extra carer when it came to dinner time, around 5pm he needed an extra hand to look after the children so that one of them didn’t put their hand on a hot plate or something and hurt themselves. Brendan asked me for permission to call an extra carer and I told him that I had no problems with this and left it with him. It was unusual for Brendan to ask for extra help as he never did, although he didn’t say that he was having any specific problems with the children. We had a general chat on the phone about things he had been doing with them that morning, and that he said that he planned on taking them to the beach later that day – I am not sure if he said what he beach he was going to". This call lasted for about 10 minutes.

It is the evidence of Mr Timothy Bannister that he was a rostered carer employed by the Department and familiar with both Jackson and WH and their care needs and daily issues, that at about 10.45am – 11.00am on 15 March he was at home and received a call from Mr Dermody with a request the Mr Bannister go in to Duntroon "because he had been left by himself. I had come off nightshift at 10.00am following a 24 hour shift at New Norfolk. He asked me if I would come into work that day, he said he was very tired and they had had an incident with WH smearing faeces. He said another carer had been there and they had ‘pulled the other worker out on me’. He was by himself. I said have you telephoned after-hours? I have to sleep and could come down about 5. He said he had cleared it with after-hours and could have anybody he liked to fill in. When I was at Duntroon it was the procedure there would be two rostered carers when both Jackson and WH were there together during the day. It is conceivable and possible he asked me to go in at 5pm and said that he was taking the boys to the beach, but I have no recall of that".

From the evidence of Ms Woolford and Mr Bannister it would seem that Mr Dermody in his calls to them that day for an unknown reason played-down his concerns about the behaviour of both boys and his need for assistance when speaking with Ms Woolford.

I find from all of the evidence that Mr Dermody was the only carer for both boys following approximately 9am on the 15 March.

From all of the evidence whether direct or by drawing reasonable inferences and conclusions I make further findings that -

  • the two boys had a difficult relationship on occasions when together, including WH being aggressive and even violent to Jackson but not to the extent where Jackson required any specific medical treatment,

  • such episodes were outside the realms of what might be expected in a familial rival-sibling environment,

  • Jackson was enthusiastic at the beach and would kick off his shoes and socks and on occasions take off his pants in anticipation of wading into the water at least to ankle depth.

  • WH was usually enthusiastic about entering the water.

  • While Jackson may have had some basic swimming lessons, neither boy was able to swim and that was either known to or ought to have been apparent to the Secretary and his employees

  • Jackson suffered epileptic episodes such that he was required to wear sunglasses and a hat at the beach in order to reduce flickering and shimmering from the water, which in turn might precipitate these epileptic episodes.

  • In the event of an epileptic episode Jackson was likely to run off uncontrollably.

Some time following noon on Saturday 15 March Mr Dermody took both boys to North Clifton Beach and parked his work vehicle in the Cape Deslacs Nature Reserve carpark, about 10 metres from a sandy walkway leading to the beach. In the car park and at the beginning of the walkway was a Parks and Wildlife Tasmania sign consisting of two yellow and black hazard pictograms (220 x 220mm) warning of a strong current and unpatrolled swim/surf area. Such pictograms conformed to Australian Standards tested symbols.

At approximately 2.30pm walkers on the beach observed WH playing fully clothed in the shallows of the water. He was unaccompanied. About 50 meters away was Mr Dermody’s watch, pocket knife, keys to Mr Dermody’s work vehicle and a mobile telephone. There were also two pairs of men’s shoes, later identified to belong to Mr Dermody and Jackson. A short time later Mr and Mrs Mather approached WH and stayed with him in the shallows for 15 to 20 minutes to see if any responsible adult came by. Mrs Mather observed the undertow in the water at that spot was "really strong". She also observed that WH was unable to communicate and when she asked him where the people were who were caring for him – "he pointed out to sea". When no person appeared they then walked WH south to the surf patrol at Clifton Beach Surf Life Saving Club (CBSLC).

Another beach walker described the tide as being‘reasonably high and the swell was large and the wind was strong". The CBSLC patrol captain described "the weather during the course of the day was fine. The surf …. was around 4 feet high at the southern end of the beach and about 6 feet high at the northern end of the beach. There were many large rips and frequent surges in the water levels in the shallows along the entire length of the beach. A rip is a rapid movement of water away from the beach and out to sea. These are characteristic of large surf conditions and are a common cause of swimmers getting into trouble in the surf. In the area where the clothes and keys were found - directly in front of this location on the beach was a large rip which ran a few hundred metres out to sea".

A long term resident of the area described -"the surf was huge and there was a large rip working… there was a large swell that was rolling in creating almost one wave for the full length of the beach." This evidence is also consistent with aerial photographs of the beach taken that afternoon.

Clifton Beach Surf Lifesaving Club (CBSLC) patrolled a flagged zone for swimmers and surfers in the vicinity of the southern end of the beach, but there was no patrolled and flagged zone anywhere near the northern end of the beach.

CBSLC immediately commenced a search of the beach and the water. Police and other emergency services including helicopter rescue also attended and conducted an exhaustive search of the area. In the days and weeks following, searches continued both on land and at sea. Police vessels, divers and the helicopter were utilised along with periodic searches of Clifton and other beaches. Nothing was located.

In April 2008 and in July 2008, human bones were found on Clifton Beach. I am satisfied that some of those remains, including rib bones and an ulna, were positively identified by full DNA profile-matching as being Jackson’s remains. Other human bones discovered could not be DNA profile-matched to any person but were consistent with a male of the age and physical stature of Mr. Dermody.

From the significant amount of evidence before me there is left little room for any doubt about what conclusions should be drawn from it about the circumstances of the 15 March 2008. Clearly the evidence establishes that both Mr Dermody and Jackson were present on the beach during the course of that afternoon with WH. Somehow Jackson and Mr Dermody ended up in the water from which they did not return. WH was found by passers-by in or near the water and was eventually taken around to the Surf Lifesaving Club. Police enquiries started and it is clear thorough searches were made. All hands turned out for the purpose including a large number of volunteers and friends of Mr Dermody. Unfortunately all of their best efforts were to no avail. It is perhaps fortunate given the circumstances in which WH was found by Mr and Mrs Mather that he did not meet the same fate as Mr Dermody and Jackson Kelty, because clearly he was in the same area of dangerous waters which had brought about the unhappy result in respect to the two others. Had it not been for the intercession of those passers-by who were concerned about this young boy being there on his own, then he too may have fallen to the elements.

By the circumstances of those searches and the thoroughness of them; Jackson’s remains being later found; no evidence either Mr Dermody or Jackson having been seen again by anybody; the evidence that in relation to Mr Dermody, his personal possessions were left on the beach; his bank accounts in the period that followed his disappearance showed no sign of any movement; those with whom he was fondly associated, and could be expected to see him if he were alive, have not seen him since that day – all lead to the regrettable conclusion that both he and Jackson Kelty met their death at that beach, in the water of it, on the 15 of March 2008.

I am unable to determine the exact cause of death for either person. But it is most probable that Jackson drowned and that his death was not due to natural causes.

I find that Mr Dermody is presumed to have died most probably by drowning and that his presumed death was not due to natural causes.

As a result of the evidence it is possible Jackson may have had an epileptic episode at the beach whereby he entered the water, or the two boys may have had an issue with each other whereby one or both entered the water, or in play one or both boys entered the water – each event possibly necessitating Mr Dermody also entering the adverse water conditions in a rescue attempt. They are merely possibilities and I can make no such findings, but they cannot be ruled out. Regrettably we will never know what really happened on the beach that day.

The response by the Secretary to these Tragic Events

Immediately following the 15 March 2008 the Secretary launched his own investigation into the circumstances of the day including a review of all systems, practices and procedures relevant to the care of the children that day. Work Place Standards also investigated and reviewed and elected to take no action. It would be reasonable to say that Work Place Standards await my findings as to whether it will take any further action.

By report dated 24 July 2009, it is to be remembered some 18 months since the loss of Mr Dermody and Jackson, Mr David Roberts the Secretary reported the following changes –

  • An ongoing recruitment campaign to employ more carers to ensure that units are staffed appropriately

  • Teams are being established and a roster is being established that includes contingencies with access to a casual pool of workers in the event of a staff member being unable to attend to their rostered shift.

  • Care teams being established to enable the provision of a better quality of care

  • A training scheme has been sourced for residential carers to support their work with children and young people.

  • House supervisors have been employed in all regions to assist and support staff and to coordinate rosters, ensure OH&S issues are dealt with quickly and efficiently.

  • Training has been provided that assists carers to better deal with challenging behaviour of residents. It is to be noted that several carers who continued in that role were unable to give any specific evidence of the actual implementation of these changes.

  • Daily routines such as mandatory written and verbal handover instructions.

Further, in September 2008, the Secretary prepared a draft ‘Carers Operational Manual’ but it contained little if anything that might be of assistance to carers were like circumstances to occur again. At page 21 it states, under a heading – "OUTINGS" - "when more than one Carer is working specific young people should be assigned to specific carers who will be responsible for their welfare and safety during the outing., carers must inform the Case Managers if they wish to take the young people on outings to isolated locations. The House Supervisor should approve all outings." In my view this document did not address contextual staff/disability-youth ratios or risk assessment guidelines or any of the other potential issues which arose following 15 March 2008. Mr Mark Burn, the CEO of Child & Family Services between March 2008 and August 2009, gave evidence that the above so-called changes were not as a result of the 15 March 2008 events but were merely the fast-tracking of KPMG recommendations for manuals. It is also his evidence that prior to 15 March 2008 (and I infer subsequently) that none of the carers were trained in any specific way and that KPMG had found that was the case following a review commenced in 2006 and that was one of the reasons for the recommendation to out-source care of children, together with the inability of the carers to have insufficient training and skills for proper risk assessment.

At a date I cannot precisely determine, but some time after July 2009, and following a report referred to as the ‘KPMG Report’ the Secretary now no longer directly employs carers of children subject to Care and Protection Orders. The care of all such children is out-sourced by tender to non-government organisations such as –

  • Salvation Army and Anglicare

  • Kennerly Foster Home

  • Life Without Barriers

  • Kinship Care model.

It would seem that the Salvation Army is the main provider in the south of the state.

As a result of these significant care changes, any policies and manuals created by the Secretary are now redundant, but in out-sourcing such children the Secretary still requires non-government organisations to comply with certain standards when requests are made for care proposals.

The Secretary no longer has any direct or ‘hands-on’ care for such children.

Other factors considered and comments on matters connected with the deaths and recommendations

While any Coroner has a general duty in any inquest to identify any person who may have contributed to the cause of death and to make appropriate recommendations with respect to ways of preventing further and future deaths, this inquest involves a presumed death in the work place and also the death of a youth in care and thus there are further or additional duties such as to investigate and make recommendations as to any necessary changes to work place safety and general practices and/or to report upon the relevant care, supervision or treatment of Jackson leading up to his death. I may also make comment upon any matter connected with either death.

At the commencement of this inquest it became apparent I should be considering various concerns which arose from the papers as a result of my initial investigations. Mrs Kelty and the Secretary were represented by counsel at the inquest and for some time prior to the formal hearing and during it, it became clear that Mrs Kelty raised numerous concerns for my consideration.

While I acknowledge those concerns and what might be termed suggested ‘terms of reference’, which in some ways were useful in defining the direction of evidence I heard, my duty is to confine myself to the relevant requirements of sections 21 and 28. I will deal with what I consider to be relevant issues raised on the evidence and in my view they will pick up many of the concerns raised by Mrs Kelty.

I heard a great deal of evidence from a number of different people. In a general sense there is really nothing much in their evidence that is either controversial or contradictory. For instance I had a significant amount of evidence from carers of children either directly in relation to their care of Jackson and/or WH, or carers of children with similar disabilities. Whilst individuals have differed in their emphasis about different things as one might naturally expect, there is no conflict to be found in the general thrust of what they had to say.

I heard a significant amount of evidence as to the role of the carers employed by the Secretary of the Department of Health and Human Services during the period 2007 through to 2008. There is evidence from those carers, a lesser body of evidence from those responsible for rostering those carers and their management to some degree, and the third category of evidence from witnesses who gave oral evidence was from the management of the Department.

I will now touch upon some issues which I consider require my investigation and/or comment and/or recommendation. It must be borne in mind that this Inquiry is in relation to a relatively unique situation involving two children with significant physical and other health disabilities. The care arrangements and the protocols and policies surrounding the provision of care for other children in the care of the Secretary without those disabilities has had little bearing or relevance in my considerations.

Were cares if children such as Jackson and WH and Mr Dermody in particular- trained, warned or counselled as to selecting appropriate places for excursions and in assessing any risks associated with those places?

In my view the answer is no. There was no direct evidence of that having occurred.

As to the carers it is abundantly clear that each one was deeply committed to the care of the young people in their respective charge. They came from a range of diverse backgrounds, mostly without experience in terms of childcare or care of children with disabilities, but in some cases with some relevant experience. The evidence clearly establishes they were not the subject of any formal training or assessment prior to their induction, and subjected to little training after their induction. Each did give evidence of attending a one or two day course conducted by officers from Ashley Youth Detention Centre, which was basically how to get oneself out of physical danger in the day-to-day management of these children. It was described by witness Robertson as "About 18 months after I started I did 1 to 2 days of training by Ashley in self-defence. I don’t recall any other training".

In my view there was no training as to the assessment of risks associated with particular activities which might take place inside or outside the in-house environment. Those outside activities each of the carers regarded as important and the daily reports show that a considerable amount of time was invested by the carers in taking these children out of the house in which they were accommodated to take them to places of natural amusement like beaches and parks. That was done for a number of reasons. One was to fatigue the children naturally so that they would sleep in the evenings and the daily reports show that from-to-time getting these children to go to sleep is a difficult task in itself. But just as important, if not more important to the carers, it was to give the children in their charge as much experience of day-to-day activities as children in more ordinary circumstances would enjoy in their family lives such as trips to beaches and parks and to shops and the like.

There was some evidence which might suggest that in the case of unusual and inherently more dangerous activities like bushwalking or kayaking, that there was an expectation that the Department would be consulted by carers and its approval sought before those activities were undertaken. But there is no evidence that any activities of that sort were actually undertaken particularly in regard to Jackson and WH bearing in mind their limited capacities and abilities. They probably could not physically participate in such activities in any event. Otherwise there was no evidence suggesting that the carers were instructed to make any form of risk assessment associated with any particular activity. It is clear from the contents of the daily reports associated with caring for children at Duntroon and from the evidence of the witnesses, that trips to beaches were commonplace activities and not something that attracted particular attention to the carers themselves nor to management.

In contrast to this situation is the evidence of Mr Cooper. He was employed as a carer by the Dept Health and Human Services in 2004 and was involved with the complex care program with children involved with Disability Services. He stayed in that role until early 2008 when Mr Dermody persuaded him to transfer over to the Duntroon House and assist with Jackson and WH. It is Mr Cooper’s evidence – "When employed by DHHS we always sat and planned the day of activities and it was relayed to the supervisor to see if it was suitable. I sat down with other carers. The supervisors were involved in team/staff meetings. We had carers meetings always on handover and planned the day. We always discussed the risk of trips. It depended upon the level of activity as to risk assessment, eg bushwalking and rock climbing. Parks and the beach were always considered a risk. Complex care was stringent with its policies; set number of clients in the house, great direction was given in all events across the full range of children. It was written down. There was a policy and procedures manual. Each child was individually assessed. The manual was not available once the complex care program finished and it became Out of HomeCare/Rostered Care. No manuals or guidelines existed. No training was given to anybody".

There is little room for doubt that both Jackson and WH required intensive and complex care, more so than any other child in care of the Secretary. This was acknowledged by the Secretary in creating Duntroon and also recruiting a team of carers who sought the position in the knowledge of the boy’s disabilities. However, it is clear that few in that team had any specific training or knowledge in the needs of either of these two boys, especially communication. It seems that the care of the boys was achieved more through hard work and practical trial and error rather than specifically addressing training in the specific needs of each child.

The carers were left to make what some of them called ‘common-sense’ judgments. The types of judgments most parents or others make when engaging young persons in any particular activity. I make no particular negative comment about that, it is a practical and proper thing to occur generally even with children with such complex needs as Jackson and WH when in their usual and normal daily activities.

However, both Jackson and WH had special and peculiar needs in environments outside the home and in my view the carers were not provided with sufficient nor specific training to suit those peculiar needs, whether it be in assessing risks to the children, the carers or the public. Some witnesses with experience in surf beach environments categorically said they would not have taken children with special needs like Jackson and WH to beaches such as Clifton. Nevertheless it was not the first time Mr Dermody had taken one or both boys to this or similar beaches. This merely emphasises the different experience and views of the carers.

Counsel for the Department submitted that even if there was no formalised training for the identification of risks, where does that get us? There would still need to be a judgment, still making a call as to whether or not a carer will engage in a desirable activity and sometimes those judgments might well be shown to be wanting.

I accept his observation that it would be very undesirable to have children in care being either locked up or denied the opportunity to engage in activities that are considered to be normal human activities, going to the beach is one, going to a shopping centre and wandering around is another, going to a place where there are people such as a football match is a normal part of living in our society and to deny people the opportunity to do that because it might be the case that one might run off or alternatively that one might get into a difficulty is really to err excessively on the side of caution which is an undesirable thing.

However, that generalisation has to be kept in the balance of all the relevant circumstances including but not limited to the ratio of carer/child; the competence and confidence of the carer and the abilities and capacities and special circumstances of the individual child in the environment to which he/she is to be introduced. If it is left to the so-called commonsense of the carer, one could see all forms of problems arising. What if a carer has no knowledge of or experience in any of those factors? Surely employer guidance would be applicable in at least the form of policies, guidelines and training.

What was lacking here was a framework for the guidance of carers as to the types of and places of activities which may pose unacceptable risks for children with disabilities so that there could be a considered exercise of discretion by carers and/or their supervisors. It seems common sense to me that there is a difference between the example of one parent taking two compatible able-bodied young swimmers to a calm beach on a suitable day and to enter the water in designated areas, compared to the situation in which Mr Dermody found himself on this day. Further, undoubtedly there would be differences in competence and confidence between any two carers. It seems quite possible that Mr Dermody, who on all the evidence was a careful person not prone to take risks generally, would have not undertaken the excursion had he had cause to properly consider a framework of safety factors backed up by the assistance of his employer. It is possible he just did not consider the particular risks on that day and/or had not been alerted to the possible risks by not having a framework to guide him to consider and assess the potential risks.

Counsel assisting submits that because there is evidence about Mr Dermody’s fatigue in caring for the boys, especially WH and the accepted practice to ‘wear the clients out’ by physical exercise before bed, that his fatigue may have clouded his proper judgments on this day. While guidelines for assessing risks may not necessarily have helped in that event, they may have. We will never know in this case because there was no training or warnings or frameworks to assist Mr Dermody in assessing the risks.

Finally, modern workplace health and safety practices require formal risk assessments to be undertaken in the workplace and require more than leaving it up to the commonsense of the individual.

Were there adequate support systems in place for carers?

Notwithstanding the initial optimism of Mr Dermody at the end of January that the boys might be interacting well and the situation where both boys were together might be manageable, that clearly changed, at least for Mr Dermody and the other carers. There is abundant evidence that a particular problem was posed to parents and carers - especially sole carers and those who managed them, by the interaction of Jackson Kelty and WH and that whatever difficulties carers may usually have with children with disabilities of various kinds these two in combination presented a unique challenge to those responsible for their care.

I had ample evidence of such specific difficulties and I have attached significance to several of them as follows. The evidence is initially contained within the daily reports and/or ‘critical incident reports’ of rostered carers for WH and Jackson and in some instances corroborated by the evidence I have heard by carers directly involved. It is clear that ‘critical incident reports’ had a higher degree of importance at least in the eyes of the carers, and should have demanded the urgent attention by those seeking the compilation of the contents of those documents. However, there is little if any evidence any person senior to carers in any way responded to such reports.

The report of Mr Dermody of the 16 February where he records the events of a particularly difficult day –

"however I started this at 9pm, he – [WH] - settled about 9.30 and was quiet but seemed to wake himself up so again we started - 10pm, even after 10 seconds of quiet your hopes rise! - at 10.15 all quiet - he's maybe asleep - 10.20 oh we're back to running around the room again. Note: I feel like I am writing a war journal so if you find this and I'm dead - lack of sleep and noisy kids really are deadly."

While this was not in the form of a ‘critical incident report’, there is no evidence any person more senior to the carers did anything about it between that date and the 15 March. With the benefit of hindsight, in my view anybody reading that report should have been alerted that Mr Dermody, despite his accepted capacities was having difficulty with the boys and was fraught and tired.

The report of carer Wayne Pate dated 23 February 2008 – "Had W in car collecting JK from access. W was trying to hit and pull JK hair – W also got his hand on JK’s little brother’s hair and gave it a good yank." While this was not in the form of a ‘critical incident report’, there is no evidence any person more senior to the carers did anything about it between that date and the 15 March.

The ‘critical incident report’ for 8 of March 2008, created by Mr Dermody. This report notes that carer Justin Cooper was also present. "Justin and me took the boys out all morning and then for a bbq lunch. After lunch WH started acting very tired and aggressive so we decided to go home. In the car WH kept attacking the other client JK trying to scratch him and bite him and hit him. We stopped the car. We then noticed that JK had scratches up his arms and they were bleeding. We then put JK in the front and Justin in the back of the car. W continued being aggressive on the way home." Of particular significance, Mr Dermody then considered it necessary to report – "this type of behaviour happened in the car three times in total over the last 48 hours." He then went on to report there were visible injuries to Jackson.

There are a number of things of significance in relation to this. The first is the fact that it was completed by Mr Dermody. The second is that it relates to both these boys, and is dated the 8th of March, although the report date is the 9th of March. Further, it was a vehicle in motion with an attack by WH on Jackson that drew blood with visible injuries and was persisted with, and was an example of behaviour that had happened three times in 48 hours. Poignantly, the report concludes "I don’t feel it is safe to transport both boys in car with one worker", signed B Dermody, 9 March 2008.

This report was some 5 days before the 15 March and in my view had proper procedures been in place for dealing with incident reports then there was adequate time to address the concerns within the report.

On 11 March 2008 Mr Robertson was the rostered carer for both boys and he completed a ‘daily report sheet’ in relation to WH and noted – "Very aggressive towards JK in car on way to school. Picked him up. Straight away having a swipe at JK. Back home in room bashing his furniture around and going to JK’s door and trying to get in and annoy him while I was cooking dinner. He kept going to the stove and trying to touch it. Over dinner he threw most of it around kitchen. Back in bedroom bashing things around. Messed himself around 7pm. Rang after-hours 3 times. Finally rang back about 9. Not good enough I did not call for fun. I was told ‘sorry did not have phone switched over’ I said don’t bother."

I can also infer that the requirement for carers to record important events or incidents in either daily report sheets or critical incident reports was ‘not for fun’ or mere historical record.

There is another ‘staff comment’ report by Mr Dermody dated 12th of March and relating to that same day when Justin Cooper was also present. It refers to them taking both boys for a walk along the river and "W was pretty good except for reaching for JK a couple of times".

These examples give clear evidence of the difficulties for the carers encountered with both boys and issues arising to give them concern. What was done about their concerns?

It is the evidence of various witnesses that critical reports and other reports were delivered to the Department. However, the evidence was unclear as to what happened with them. In some cases they were left in pigeon holes or trays on counters. There is some evidence that some people in the Department read them, or looked at them, but it is then unclear as to what happened with the reports or whether they were acted upon and if so, in what way.

Mr Stuart Oldfield was the Child Protection Manager for the south-west region in March 2008. He could not recall if there were any policies or procedures in place at that time for dealing with incident or other reports by rostered carers. He said that it was not part of his duty at the time to be informed of and assess such reports, although that had since changed. He relied upon his subordinates such as the Team Leader who was expected to address the issue raised in ‘house meetings’ and to minute the results. At the time he did get to see very serious reports such as any allegation of the abuse of a child or the suspected death of a child in care or an employee.

There was unclear evidence from other Departmental employees as to how such reports were delivered, considered, and outcomed or not. There was certainly no clear evidence about policies and procedures as to how such reports were delivered and dealt with and what process went on within the Department from the arrival of these forms in the office. Witness Robertson said – "I would put in incident reports and they would still be sitting in the tray 5 weeks later".

Having considered this evidence I again pose the question, did the Department respond appropriately to daily reports and incident reports concerning the interactions between Jackson Kelty and WH?

In my view - no. There has been no evidence led by the Department that it had a procedure process by which incident reports and the like were inspected to analyse them with the intent that any lessons to be learned from them be processed, and any changes made in the care of these children be made as a result of what could be learned from them.

Counsel for the Department (Mr Turner) submitted that Mr Dermody made the critical incident report of 9 March that it was unsafe to be in the car with the two boys, yet three days (in my view more like 5 days) later he took both boys out again in the motor vehicle on his own without having had feedback from the Department. It is submitted that if it was unsafe on the 9, why did he do it 3 days (or 5 days) later, he did not have to take them to the beach – maybe it wasn’t so unsafe in his mind as to cause him to be concerned so significantly that he would not embark upon a desirable activity because it was good for the boys. As I understood the submission, maybe Mr Dermody really was not putting much overriding emphasis on the danger contained in his report and it was outweighed by the value in the excursion. That is one view of it and unfortunately we will not really know because Mr Dermody cannot tell us.

However, there is the evidence of his other concerns and incidents by others and it is also reasonably open to conclude that on 15 March Mr Dermody was tired, fatigued, fraught and without immediate support in the difficult circumstances as he described them to Mr Bannister and as observed by Mr Cooper. It is equally open to accept that, notwithstanding his usual sense and fortitude, as a result of these factors he did not properly exercise a considered judgment. It is possible he just wanted to tire the boys out so they could all get some rest.

Was it appropriate for one carer to be looking after two boys such a Jackson and WH on such an excurstion? Did the Department provide adequate staffing levels in this case and did it respond to the concerns of carers about staffing levels/ratios?

Quite apart from the examples of incidents referred to above together with others in the motor vehicle or elsewhere which were reported and about which some of the carers gave evidence, it is clear that the combination of these two boys with their similar but slightly different problems presented very substantial problems for the carers. This was made the more so by the quite volatile and unpredictable nature of some of the aggressive behaviour by WH. It is the evidence of carer Robertson that WH was entirely unpredictable and described an occasion when WH as sitting on his knee perfectly happy and then without an apparent cause of trigger of any kind then attacked him. "More than one time he (WH) scratched my arms and would bite me and lash out, when he was on his own but more often when another client was there. He would draw blood when he scratched and they would be good bites. I had no training why he might bite or scratch or how I should react".

Witness Bannister, who cared for both boys in early 2008 said – "With WH transport was difficult, he would try and get out of his seat belt and attack the other person in the back. I did transport him one on one in the first few weeks. It was difficult, he got out of the seatbelt and smacked me on the back of the head, when the car was stationary, nothing when I was driving. Nothing would provoke him. I recall both boys being in the car more than once. There were a couple of times WH tried to get out of his seatbelt". In a ‘daily report sheet’ for the same day Mr Bannister reported – "Jack very upset that WH is in car – got in car took off down road. WH undid seatbelt and jumped onto the back of Jack’s chair and started pulling his hair. Stopped this – calmed Jack down. Got home Jack very nervous around WH". 

The practice of WH releasing himself from seat restraints to attack Jackson or the driver or carer presented a clear example of risk. Risk associated with the attack by one passenger on another in a moving motor vehicle in traffic or in the vicinity of passengers. It is obviously a risk not only to the occupants of the vehicle but to those other road users and pedestrians that might be in the vicinity of the occurrence of such an attack. In my view Mr Dermody was correct when he observed in a report not apparently noted by any superior in the Department, that it simply was not safe to transport the two boys in a car without a second carer there to make sure that the driver would not distracted by such an incident occurring and hopefully to prevent such an incident occurring.

From the entirety of the evidence to be tempered by the benefit of hindsight, it is open to infer there were many risks associated with the behaviour of the two boys when together and those risks could have presented themselves in many ways. From time to time the two severely autistic boys had social-type difficulties whilst interacting with members of the public on excursions in shopping centres. In one case there was some inappropriate touching of a lady as referred to in one of the daily incident reports. Clearly the two boys in combination, in any circumstances where something socially challenging might occur, would present a risk to themselves and anybody trying to intervene. Some mild emergency in a car park at a shopping centre might immediately cause all sorts of imaginable risks to their safety, the more so in my submission because of the assessments made by the Department of those boys such as it identifying both of the boys as having no sense of danger and given to impulsivity. In those circumstances, taking two children such as Jackson and WH to the show-grounds or to an aquatic regatta or an environment of a like nature in the care of one person clearly presented as a risk.

Despite those risks now being apparent in the cold light of hindsight, there is insufficient evidence to permit me to make any finding that in February and March 2008 did any person more senior to the individual carers apply their mind to whether staffing levels were appropriate and in what circumstances they might need to change, especially given the peculiar circumstances of the two boys and the lack of knowledge generally in the Child Protection workers in how to adequately cater for their needs,

In my considered view it is not possible to properly consider making broad determinations whether or not for their proper care in the ordinary sense of the word by the Department, there ought to have been two carers for the two boys at all times. In my view the important issue to determine is whether the transport and excursion needs of these two boys could reasonably and safely be met by one carer. Was it appropriate for one carer to be looking after two boys such as Jackson Kelty and WH on such an excursion? The conclusion I draw is from the evidence is - no. It was the evidence of Mark Burn that from his 27 years of experience the ratio of staff to client is always debatable and dependant on all the circumstances of each case. However, he did give clear evidence that in the usual context of a youth/child subject to a Care and Protection order it would be rare to have one carer for each client. That really is a common sense approach. However, he did say that if the children were autistic then that would be the exception to the rule.

In short, the entries in the daily records and the incident reports, especially as to WH's conduct in motor vehicles, should have been sufficient to put the Department on notice that it ought to have given a direction that these two boys not be transported or taken to excursions other than in the presence of two carers. As counsel assisting, Mr Barker submitted - there was a significant body of evidence from the carers that that was their view by decent democratic majority. It was also ironically and poignantly - Mr Dermody's view. 

While I cannot say with any certainty that had there been another carer with Mr Dermody on 15 March 2008 things would have been different, it is quite possible that any risks on the Clifton Beach excursion could have been minimised, compared to Mr Dermody being on his own and having to cope with a situation in difficult water with the two boys.

Was Clifton Beach an appropriate place for such an excursion?

If there was no reasonable risk of either of the boys being near the water and/or no reasonable risk that there may be an issue with one or both boys in the vicinity of the water, then the answer would have to be yes. For all the reasons I have heard in evidence, walks on beaches for such children is a good thing to do.

However, if there are reasonable risks arising by the nature of the children as have been identified in this case then I would have to say – no, except with the possible qualification of having one carer for each child at a safe area of the beach.

Was the signage in the area sufficient to warn of the risks?

On the 15 of March 2008, there was signage present which was available to be seen by Mr Dermody as he left the car park area toward the beach. Whether he noticed it I cannot say. Whether he read it carefully and it made no impact on him, I don’t know. I don’t even know whether he read it carefully and regarded it as significant. But nonetheless the events occurred notwithstanding.

Although there is no direct evidence from Parks & Wildlife that as a result of this incident it changed the signage, it is a reasonable inference to draw. Parks & Wildlife clearly made some assessment of the adequacy of the signage in the area, adjoining the car park and leading onto the beach, following 15 March and during the year. It increased the visibility of the signage and made the warnings contained by it much more explicit.

In my view the signage was adequate to warn of risks as at the 15 March 2008, but I am pleased to say that subsequent enhancements have made those warnings more visible.

RECOMMENDATIONS

Notwithstanding the Secretary has now out-sourced the care of similar children to NGO’s, he still has the statutory responsibility for like children and also to ensure that contractual arrangements are satisfactory. As the major provider of complex care in the south of Tasmania, clearly the Salvation Army is in a situation not too dissimilar from that which the Department was in March 2008. Having looked at the Salvation Army documents produced by Mr Oldfield, I can find nothing in them that constitutes an injunction to carers and staff to assess the risks associated with any particular activity, especially of a nature undertaken on the 15 March. Mr Byrne conceded it was his expectation, as it was the expectation of the Secretary of the Department, Mr Roberts, that there would be, following those events in March 2008, some sort of more formal risk assessment that would take place in relation to activities in these complex and exceptional care homes. I had no evidence of any such addition or change.

I RECOMMEND that the Secretary when out-sourcing care of young persons with complex and exceptional needs, that he require the potential or actual care providers to address specifically

  • staff to client ratios in any such care situations, and

  • the training of staff in the particular care needs of each individual child and the assessment of risk to that child in any environment, and

  • a developed and documented policy about excursions and the management approval of such excursions, and

  • a developed and documented policy whereby management receive in a timely fashion and respond in a timely fashion to incident reports concerning the interactions between carers and children, and

  • a developed and documented policy to report to the Secretary relevant incidents involving the care and welfare of a child in care.

There were other issues raised by Jackson’s mother which in my view fall outside the scope of the evidence I heard and my duties pursuant to section 21 and 28.

Can any person be identified as contributing to the cause of either death?

Others have said - "who has caused a certain event to occur is essentially a practical question of fact best answered by the application of common sense". 

In each case before me, ‘drowning’ is the cause of death. My power of investigation arises from these particular deaths and must be relevant to them.

Where there is the death of a child in the care of the state and/or the death of an employee of the state when caring for such a young person and where occupational health and safety factors may well expose and render that worker vulnerable to personal criticism or injury or death, then there will always be broad community concerns. In Tasmania it is integral to an inquest into how a death came about to involve an assessment of whether it occurred through the agency, intervention or lack thereof, or involvement of another person or entity. The assessment must be as to whether there was a departure from the reasonable standards of behaviour ordinarily required by any person.

However, it is preferable a Coroner’s findings avoid assessments suggestive of civil liability and as Freckleton and Ranson have said "the distance the coroner should travel from the proximate event in finding causation is a matter of common sense". 

If the acts or omissions of an employer directly contributed to the cause of death, for example by prescribing an unsafe work practice, a finding might be made as to contribution, but there must be clear and cogent evidence and a comfortable satisfaction as to the underlying facts before such a finding as to how any contribution to any death may have occurred can be properly made by a Coroner.

Counsel for Jackson’s mother has submitted that despite Mr Dermody’s best intentions, he contributed to Jackson’s death through his inability to supervise or adequately supervise Jackson at the beach that day and that in turn the Secretary caused and/or contributed to Mr Dermody’s inabilities by failing to provide a sufficient ratio of carers; failing to provide policies or systems of work and training to assess risks inherent in excursions to such a beach.

Some or all of those suggested items of relevance and importance have been addressed by me elsewhere. In my view the evidence I have heard and findings made are insufficient for me to draw any appropriate conclusions in the establishment of a connection between any acts or omissions of the Secretary and the consequential deaths of either Mr Dermody or Jackson. Nobody can say what really happened on the beach that day. With the benefit of hindsight it is likely things could have been done better to assist carers in the care of two children such as Jackson and WH. However, I cannot say it is more likely than not that if there had been two carers on the beach that day or the work systems had been better the double tragedy could have been averted. I decline the invitation of those assisting Mrs Kelty to make any findings that the Secretary contributed to either death in the sense required by section 28 of the Coroner’s Act.

So far as Mr Dermody is concerned, I can do no better than accept and adopt the very apt words of counsel assisting me, Mr Peter Barker –

"I have been at the conclusion of it forced to be critical of Mr Dermody and his decision that day to drive those two children to that place.

It is fair to acknowledge that the evidence seems to me to be consistent with the initial police view of what occurred - and I read to remind people of what that initial view was, this is the view that the police had reached by the 16th of March, and its expressed by Mr Adams, the Divisional Inspector -

 the circumstances surrounding the disappearance of Dermody and Kelty are unclear as there are no eyewitnesses to the incident, however, it is believed that Kelty, who is also severely disabled entered the water and experienced difficulty and Dermody went to his aid and also succumbed to the conditions. Conditions were described at the time as treacherous with heavy swells and a number of strong rips

We have had evidence from Mr White and from Mr Cooper and others about how treacherous that beach could be in those conditions. At that time an excursion into the water of a foot or two might have been more than enough to plunge Jackson Kelty into real trouble. Whatever errors of judgment Mr Dermody made it is very highly likely that he died in trying to save that boy."

 

DATED WEDNESDAY 19 JANUARY 2011

 

GLENN ALAN HAY
CORONER