AMA v State of Victoria
[2012] VCC 1453
•1 October 2012
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-06186
| AMA (as Litigation Guardian for PAA) | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11, 14, 15, 16, 17, 18, 22 and 23 November 2011 | |
DATE OF JUDGMENT: | 1 October 2012 | |
CASE MAY BE CITED AS: | AMA v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1453 | |
REASONS FOR JUDGMENT
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SUBJECT – DAMAGES
CATCHWORDS – duty of care – school to pupil
LEGISLATION CITED – Wrongs Act 1958, s51, s52; Crown Proceedings Act 1958, s23(1)(b); Evidence Act 2000, s60
CASES CITED – Richards v State of Victoria [1969] VR 136; Commonwealth of Australia v Introvigne (1982) 150 CLR 258; New South Wales v Lepore (2003) 212 CLR 511; Ramsay v Larsen (1964) 111 CLR 16; Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40; Gunnersen & Anor v Henwood & Anor [2011] VSC 440; Gosling & Ors v Lorne Foreshore Committee of Management Inc & Anor (2009) 25 VR 302; Rootes v Shelton (1967) 116 CLR 383; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; McHale v Watson (1966) 115 CLR 199; Joslyn v Berryman (2003) 214 CLR 552; Astley v Austrust Ltd (1999) 197 CLR 1; Oyston v St Patrick’s College [2011] NSWSC 269; Sheldrick v State of New South Wales [2007] NSWCA 105; Griffiths v Kerkemeyer (1977) 139 CLR 161
JUDGMENT – Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr C Hangay | Shine Lawyers Limited |
| For the Defendant | Mr R Dyer | Moray & Agnew |
HER HONOUR:
1 By Writ and Statement of Claim dated 21 December 2010, the plaintiff, by her litigation guardian, sues the defendant in negligence for damages as a result of injuries sustained whilst the plaintiff was playing organised sport at school.
2 The plaintiff was a student at Parkdale Secondary College, and on 16 July 2010, participated in a modified game of lacrosse (“softcrosse”). On that day, before school, the plaintiff had received physiotherapy treatment for her injured right ankle. Her physiotherapist, Mr Peter Thomas (“Mr Thomas”), advised the plaintiff not to participate in sport. The plaintiff claims that the defendant (“the school”), through its servant and agents (teachers and staff), was informed of her injury and was instructed that she was not to play sport, however, contrary to this instruction, the plaintiff was directed to play.
3 During the game, the plaintiff jumped to catch a ball and landed awkwardly, heavily twisting her knee, causing a complete rupture of the anterior cruciate ligament. The plaintiff claims that this injury is a direct result of the negligence of the defendant. She claims that the injury required surgical repair and that she suffered pain, anxiety and upset as a consequence, and that she will require ongoing treatment, including rehabilitation.
4 The plaintiff claims that before the incident she had a promising future in competitive hockey and that she had a real prospect of competing at an elite level, including representing Victoria. As a consequence of her injury, she says it is likely that her dream of becoming an elite world-class athlete is all but dashed.
History of Proceedings
5 Mr Jewell SC appeared with Mr Hangay on behalf of the plaintiff. Mr Dyer appeared on behalf of the defendant.
6 This case was to proceed as a jury trial; however, at the request of the parties, and by consent, I directed the matter proceed as a cause.
Issues
Question 1:
Was there negligence on the part of the defendant, its servants and/or agents which was a cause of the plaintiff’s injury?
(a) was a duty of care owed?
(b) by whom was the duty owed? (vicarious liability)
(c) what was the extent of the duty owed?
(d) has the defendant (by its servants and/or agents) breached the duty?
(e) has the plaintiff suffered harm, loss or damage?
(f) was the defendant’s negligence a cause of the injury?
Question 2:
If “Yes” to Question 1, in what amount do I assess the plaintiff’s damages?
Question 3:
Was there (contributory) negligence on the part of the plaintiff which was a cause of her injuries?
Question 4:
If “Yes” to Question 3, by what percentage or proportion is it just and equitable that the total loss and damage to the plaintiff should be reduced, having regard to her own share in the responsibility for the said injury?
7 The defendant does not deny the existence of the duty, nor does it deny that the plaintiff was injured during the game of softcrosse. However, the defendant maintains that it did not breach the duty of care owed to the plaintiff. Further, it submits that there is no causal nexus between any negligence on the part of the school and the injury.
8 The defendant abandoned the defence of volenti non fit injuria.
Background
9 The plaintiff, PAA, was born in 1996. On 16 July 2010, she was in Year 8 at Parkdale Secondary College. She was then aged fourteen. Her father and brother had significant health issues and the plaintiff committed herself to sport, as it provided emotional and physical relief from the problems she confronted at home. She demonstrated great capacity in hockey. From age eleven, she represented the State of Victoria in State hockey in various age groups. Indeed, at age eleven, she was selected to represent Victoria in the School Pacific Games. She also represented her school and played for the Mentone Hockey Club. Her position in the team was goalkeeper. She trained on Tuesday and Thursday evenings and generally played hockey twice on the weekends. In addition to organised training and games, the plaintiff committed many hours to training on her own. She would run an average of six kilometres per session during the week. In addition to all of this physical activity, the plaintiff assisted in the care of her father and her brother.
10 The plaintiff completed her primary education at the end of 2008 and then attended Parkdale Secondary College from 2009. In early 2010, the plaintiff won School Pennant, was Captain of the team and received the “Best and Fairest” Award. It would appear that the plaintiff has been credited with many such awards and certificates resulting from State representation, performance with her club and through the school.
11 As part of its curriculum, the school provided physical education (“PE”), including competitive sport classes.[1] The school permitted students to nominate their preferred sports. With few exceptions, participation in sport was compulsory.[2]
[1]For the purposes of this judgment, there is no appreciable difference between “sport” and “PE”.
[2]A student could be excused if a parent provided a note or instruction to this effect; if a student was unfit to play; if a student was not in correct sports uniform, and at the discretion of the school.
12 At the end of second term, and in the school holidays, the plaintiff was invited to participate in State trials for State selection for the Under 15s Hockey Team. In the first round of these State trials, the plaintiff sustained a relatively minor injury to her right ankle (an eversion injury). Even so, she was able to perform well and was selected to move into the second phase of the trials. These were to be held on 17 July 2010.
13 Over the years, the plaintiff attended her physiotherapist, Mr Thomas, for various treatments as a consequence of her sporting activities. Mr Thomas treated her for the ankle injury sustained in the first round of the State trials.
14 On Monday, 3 July 2010, the third term of school commenced. After school, the plaintiff saw Mr Thomas, who administered relatively conservative treatment for the injured ankle. He advised her to “take it easy” and not to train the next night in order to give her ankle a chance to recover. On the evening of Thursday, 15 July 2010, the plaintiff trained with the juniors for forty-five minutes. She then began training with the seniors. Unfortunately, in this session, the plaintiff aggravated the injury to her right ankle. It caused her some pain.
15 The next day, Friday, 16 July 2010, was PE day at the school. A double period in the afternoon was dedicated to this. Before school, however, the plaintiff attended Mr Thomas. He again administered conservative treatment. He strapped the plaintiff’s foot and ankle to immobilise and protect them. He advised the plaintiff not to play sport that day. He also told her not to hop, skip, jump or run. As the plaintiff was due to participate in the second round of State trials the next day (or the day after that), the plan was for the plaintiff to rest her ankle thereby maximising her prospects of being fit enough to compete in that round.
16 The plaintiff’s mother, Mrs AMA, had taken the plaintiff to Mr Thomas and thereafter, drove her to school. The plaintiff arrived after school had started for the day and was therefore late. Students who arrived late generally required a parent’s note. Mrs A accompanied her daughter into school to explain the lateness, among other things. They went straight to the office of Ms Lister, the assistant principal.
Disputed Facts
17 The content of the conversation that took place in Ms Lister’s office is in dispute. The plaintiff’s case is that Mrs A informed Ms Lister that they had just come from the physiotherapist’s rooms and that the plaintiff was not to play sport that day. Mrs A told Ms Lister that the physiotherapist had advised the plaintiff not to hop, skip, jump or run. She also told Ms Lister that the plaintiff was to participate in the next round of State trials that weekend. The plaintiff further alleges that Ms Lister undertook the responsibility to inform the PE teacher that the plaintiff was excused from participating in sport.
18 On the other hand, the defendant’s case is that although there was mention of the plaintiff’s attendance at the physiotherapist, no instruction was given to excuse the plaintiff from playing sport. Rather, it is alleged that Mrs A instructed Ms Lister that the plaintiff was to participate in her allocated sport that day.
19 There is also dispute regarding what happened after this meeting. The plaintiff’s case is that the plaintiff then went to the first aid office where her mother authorised Ms Hayley, the first aid officer, to administer Panadol to the plaintiff, if necessary, to relieve any pain that the plaintiff might suffer that day as a result of her injury. The plaintiff further alleges that there was discussion about the plaintiff’s ankle and her inability to play sport that day.
20 On the other hand, the defendant’s case is that Ms Hayley has no recollection of Mrs A authorising her to administer Panadol, or of the alleged conversation with the plaintiff.
21 Ms Della Fortuna was the teacher responsible for the PE class. Ms Della Fortuna determined that the class would play a form of lacrosse using a softball (softcrosse). Instead of playing on the grass, Ms Della Fortuna directed the students to play in one of the basketball courts that had a bitumen surface.
22 The plaintiff’s case is that, contrary to her mother’s specific instructions to the school, the plaintiff was directed to participate in the game of softcrosse.
23 It is not disputed, that prior to the game, the plaintiff and another student, ML (“M”), told Ms Della Fortuna that they were unable to participate in the game. There is dispute as to what Ms Della Fortuna then said, but there is no dispute that, as a consequence, both M and the plaintiff participated in the game.
24 The plaintiff alleges that she did not actively engage in the game. In effect, she made up the numbers and more or less loitered in her allocated position. Unsatisfied with the plaintiff’s effort, Ms Della Fortuna urged her to do more. Towards the end of the game a ball came towards the plaintiff. Feeling compelled to do so, the plaintiff jumped up to catch the ball with the racket using both hands. Because her right ankle was already compromised, the plaintiff attempted to protect it. She consciously adjusted her weight so she could land on her left leg and avoid further damage to her right. There is no dispute that in the process of landing, the plaintiff came down heavily, twisting her knee. She fell to the ground. She was subsequently diagnosed as having sustained a complete rupture of the anterior cruciate ligament of the left knee.
25 On 25 August 2010, Mr Trivett, orthopaedic surgeon, performed a reconstruction of the affected ligament. The operation was largely successful; however, the plaintiff's education and her hockey pursuits were severely interrupted. As a consequence, she was unable to participate in the State trials. The plaintiff’s recovery and rehabilitation have been long and are continuing.
26 The defendant’s case is that Ms Della Fortuna “encouraged” the plaintiff to participate, but did not force her to do so. Once playing, the plaintiff participated enthusiastically. Her accident was just that, and was in no way due to any negligence on the part of the defendant. Moreover, it alleges that the element of causation cannot be established. Accordingly, the defendant denies liability. If, however negligence is established, the defendant alleges that the plaintiff is guilty of contributory negligence.
The Plaintiff’s Cause of Action
27 The legal principles to be applied in this case are not in dispute. As Mr Dyer conceded, the plaintiff’s case will stand or fall on the version of facts to be accepted.
28 The plaintiff’s action is based in negligence. The provisions of Part X of the Wrongs Act 1958 (“the Act”) apply.
Onus and Standard of Proof
29 The plaintiff bears the onus of proving all elements of her cause of action, on the balance of probabilities. The defendant need prove nothing.
Question 1: Was there negligence on the part of the defendant, its servants and/or agents which was a cause of the plaintiff’s injury?
(a) Was a duty of care owed to the plaintiff?---
Yes.
30 As Mr Dyer properly conceded, the duty of care owed by the defendant to the plaintiff arises under common law because of the relationship between the parties – school (teachers and other staff) and pupil.
(b) By whom is the duty owed?---
The school is vicariously liable.
31 That the school was vicariously liable for the acts and/or omissions of its employees[3] was not in issue. There is no suggestion in this case that any teacher or other member of staff exceeded his/her actual or ostensible authority, or was on some “frolic of their own”.
[3]Crown Proceedings Act 1958, s23(1)(b)
32 In this case, the servants and/or agents of the school whose acts/omissions are said to be negligent are:
· Ms Lister, the assistant principal; and
· Ms Della Fortuna, the sports/PE teacher.
(c) What is the extent of the duty owed?
33 As Mr Dyer conceded, at common law, the school owed a duty of care to the students (including the plaintiff) under its control and supervision.[4] It is a non-delegable duty.[5]
[4]See Concession “14”, paragraph 1(a) and (b)
[5]Commonwealth of Australia v Introvigne (1982) 150 CLR 258 at 270; New South Wales v Lepore (2003) 212 CLR 511 at [36]. See Exhibit J, paragraphs 8-10
34 This duty required the school to take reasonable care for the safety of its pupils.
35 As was stated in Richards v State of Victoria:[6]
“… it is now clearly established … that in general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered. … ‘The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances. It is indisputable that in general a schoolmaster owes his pupil a duty of that order’.[7] The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury.”[8]
[6][1969] VR 136
[7]Ramsay v Larsen (1964) 111 CLR 16 at 27
[8]at 138-139
36 The test to be applied is an objective one. The duty owed is that of a reasonably prudent teacher. The school was required to take reasonable care to avoid exposing the plaintiff to risks of injuries that were reasonably foreseeable.
37 The real question in this case is not whether such a duty of care was owed;[9] rather, it is whether the school breached that duty, and, if it did, whether causation is established.
(d) Has the defendant, through its servants and/or agents, breached the duty?
[9]The defendant’s duty is owed.
38 In determining whether the school, through its various servants and agents, was in breach of the duty of care owed to the plaintiff, this question must be asked: would a reasonable teacher (in the defendant’s position) have foreseen that his/her conduct would involve a risk of injury to the plaintiff or the class of persons which includes the plaintiff?
39 If the answer is “Yes”, then consideration must be given to what a reasonable teacher would do by way of response to that risk. That in turn requires consideration of matters such as 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.[10]
[10]Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40 at 47-48
40 The school does not need to achieve a standard of perfection. Rather, it is the exercise of reasonable care to not expose the student to a foreseeable risk of injury that is required.
41 Although the standard is objective, the actual circumstances of the defendant must be taken into account, including the level of control it exercised over its students and the resources available to it.
42 A defendant may breach its duty of care by doing something that a reasonably prudent teacher would not have done in the circumstances, or by failing to do something, which a reasonably prudent teacher would have done in all the circumstances, or, by a combination of both.
43 The reasonableness of the school’s conduct must be assessed prospectively, not retrospectively.
44 Section 48 of the Act provides:
“(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
(3) For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.”
45 Section 49 of the Act provides:
“In a proceeding relating to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. … .”
The Evidence – The Plaintiff’s Case
46 The following witnesses were called on behalf of the plaintiff:
· PAA, the plaintiff
· AMA, the plaintiff’s mother and litigation guardian
· Peter Francis Thomas, physiotherapist
· Adrian Justin Trivett, orthopaedic surgeon
· Michael David Jones, sports administrator and the plaintiff’s hockey coach
· Kevin Francis King, orthopaedic surgeon
· ML, student.
47 In addition, the following exhibits were tendered:
· Report of Mr Peter Thomas, physiotherapist: Exhibit A
· Report of Mr Adrian Trivett, specialist orthopaedic surgeon, dated 2 May 2011: Exhibit B
· Operation record of Mr Trivett: Exhibit C
· Report of Mr Kevin King, orthopaedic surgeon, dated 5 July 2011: Exhibit D
· Statement pursuant to s28LZM of the Act dated 5 July 2011: Exhibit F
· Email from Ms Della Fortuna to Ms Lister dated 19 July 2010: Exhibit G
· Parkdale Secondary College student report – semester 1: Exhibit H
· Submissions made on behalf of the plaintiff: Exhibit J.
PAA
48 The plaintiff gave evidence as to the background I have already mentioned. She explained the circumstances of sustaining the right ankle injury: she made a mistake while kicking the ball away, accidentally lifting her foot too high, causing the ball to go underfoot, resulting in the twisted ankle. She also explained the treatment she had received from her physiotherapist, Mr Thomas, as a consequence.
49 Going to the morning of the incident, the plaintiff explained that Mr Thomas was able to see her on the morning of 16 July 2010 before school. That day, the plaintiff wore her school sports uniform to school.[11] During the consultation with Mr Thomas, Mr Thomas used suction cups and massaged the plaintiff’s ankle to help reduce the swelling. He then taped the ankle and applied a pressure bandage. This was done to keep her ankle in a secure position and immobilise it. The plaintiff explained that the bandaging went up to mid-calf level and around her foot and ankle. She said the bandaging and taping were obvious and caused her to walk with a bit of a limp.
[11]It was compulsory for students to wear a sports uniform on Fridays
50 The plaintiff said that Mr Thomas told her “to take it easy” and “not to hop, skip, jump or run”.[12] He further told her not to play club hockey with Mentone that weekend and to rest her ankle for the State trials.
[12]Transcript (“T”) 51
51 After leaving Mr Thomas’s office, the plaintiff went straight to school with her mother. They both went to see Ms Lister, the assistant principal. The plaintiff said that as she approached Ms Lister’s office, Ms Lister commented on her obvious limp, “What have you done to yourself?”[13] The plaintiff responded:
[13]T 53
“I had training last night and rolled my ankle pretty bad, and so I had to go to physio this morning and get it taped, and I’m not allowed to do any sport this weekend, or today.”[14]
[14]T 53
Ms Lister then said:
“So, you’re not going to be able to play sport today and this weekend?”[15]
[15]T 53
To which the plaintiff replied:
“Yeah, I’m not allowed to do that … and I’m not allowed to hop, skip, or jump, or run.”[16]
[16]T 53
52 The plaintiff told Ms Lister that this was the physiotherapist’s advice. According to the plaintiff, Ms Lister said:
“That’s fine; that’s good.”[17]
[17]T 53
53 The plaintiff also said that she heard her mother tell Ms Lister that the physiotherapist had advised that the plaintiff not participate in sport that day or through the weekend until the State trials. According to the plaintiff, Ms Lister said:
“No, that’s fine, I’ll go speak to Ms Della Fortuna that you’re not allowed to play sport”[18]
and that under the circumstances, given that the plaintiff’s mother had directly informed Ms Lister there would be no need for a written note confirming that the plaintiff was not permitted to participate in sport that day.
[18]T 53
54 In this conversation, at some point Mrs A discussed whether it would be possible for the plaintiff to participate in the boys’ hockey team as there were insufficient girls interested in hockey to form a team. There was also discussion about whether the plaintiff could wear her own shorts instead of school shorts, as her legs were muscly and the school shorts were an ill fit. According to the plaintiff, Ms Lister said:
“I’ll have to ask someone about that, but I’m pretty sure that’s fine.”[19]
[19]T 54
55 Ms Lister then told the plaintiff to go to class and sign in (late attendance record) before she did so. Before leaving, the plaintiff asked Ms Lister:
“Can you please make sure that Ms Della Fortuna knows that I cannot play sport today and that I’m sad about that?”[20]
[20]T 55
56 The plaintiff then left Ms Lister’s office and went to sign in with Ms Hayley.
57 Ms Hayley was also in charge of first aid. According to the plaintiff, Ms Hayley noticed the plaintiff limping and moreover observed the strapped ankle. She said, “What have you done to yourself?”[21] The plaintiff explained to Ms Hayley that she had hurt herself the night before, that she had been to the physiotherapist that morning and that he had advised that the plaintiff was not allowed to participate in sport that day. Ms Hayley responded:
[21]T 55
“P no sport, that’s a bit strange. How are you going to cope with that?”
The plaintiff replied:
“I know, I don’t know [how] I’m going to cope with that.”[22]
[22]T 55
58 The plaintiff then signed herself in. She heard her mother and Ms Hayley talk. Her mother asked Ms Hayley if it were possible for the plaintiff to have Panadol during the day if that were necessary. Ms Hayley agreed, and then the plaintiff’s mother confirmed:
“She’s not allowed to play … and … not allowed to hop, skip or jump.”[23]
[23]T 56
59 The plaintiff left Ms Hayley and her mother to talk. She then went to class.
60 Before the lunch break, the plaintiff saw Mr Austin, the Year 8 Co-ordinator. He was also a sports teacher at the school. He informed the plaintiff that she would have to play general sports, as there were insufficient girls interested to put together a girls’ hockey team. The plaintiff responded:
“Sure but I can’t do anything today because I hurt my ankle the day before and I’m not allowed to participate.”[24]
[24]T 57
61 Mr Austin asked if the plaintiff had a note, and she explained that she and her mother had been to see Ms Lister that morning and that Ms Lister would speak to her sports teacher.
62 After lunch, the double PE session commenced. Ms Della Fortuna was in charge of the group in which the plaintiff was meant to participate. The plaintiff and another student, M, approached Ms Della Fortuna. According to the plaintiff, she asked Ms Della Fortuna whether she had seen Ms Lister that day. Ms Della Fortuna said she had, and then asked:
“What’s wrong with you, I can obviously see you’ve got your ankle strapped high?”[25]
[25]T 59
63 Ms Della Fortuna said:
“Ms Lister’s told me about your situation. You don’t need to explain it to me again.”[26]
[26]T 59
64 The plaintiff answered:
“Alright, that’s cool then. What do you want me to do?”[27]
[27]T 59
65 Ms Della Fortuna said:
“While the other kids go and do their warm-up you can help me bring out all the equipment for the game.”[28]
[28]T 59
66 The plaintiff and M then went with Ms Della Fortuna and helped her set up for the class. M was also apparently not to play sport that day. She also was wearing ankle strapping.
67 The plaintiff and M carried out goals and put them at each end of the field and brought out the lacrosse sticks and sashes. Meanwhile, the class was doing warm-up exercises. M and the plaintiff then sat down beside the fence of the basketball courts, as there was nothing more that they could do. The lacrosse game (softcrosse) was to be played on the basketball court which comprised of a bitumen surface. Previously when they had played lacrosse, it was on the grass in the back oval. Once the class had finished the warm-up, Ms Della Fortuna divided the group into their teams. She explained the rules and then they started to play. During this time, the plaintiff was still seated beside the fence with M.[29] About five minutes into the game, Ms Della Fortuna approached the plaintiff and M and asked them to participate:
“Look we’ve got an odd amount of numbers in the teams, would it be possible if both of you could play?”[30]
[29]T 59-60
[30]T 60
68 The plaintiff explained:
“I can’t. Ms Lister’s spoken to you. If she’s told you I’ve got my ankle strapped and I’m not allowed to do any of this.”[31]
(sic)
[31]T 60
69 Ms Della Fortuna responded in the affirmative. Then M said:
“I don’t want to hurt myself.”[32]
[32]T 60
70 According to the plaintiff, Ms Della Fortuna left, but returned about five minutes later. At first she spoke to M, asking her to play. M said:
“Okay, I guess I can’t lose anything.”[33]
[33]T 61
71 So M joined the game.
72 Ms Della Fortuna then turned to the plaintiff:
“Could you please play? You don’t have to do much, you could just fill out the numbers.”[34]
[34]T 61
The plaintiff replied:
“I can’t, sorry, I’m not allowed to I’ve been told.”[35]
[35]T 61
But the teacher persisted:
“Could you please stand up and participate?”[36]
[36]T 61
73 The plaintiff held her ground:
“I’ve been told by my physio that I’m not allowed to play. I’m not allowed to hop, skip or jump, and lacrosse involves all of those, and I’ve already spoke[n] to Ms Lister about it and she said it’s not a problem.”[37]
[37]T 61
74 Ms Della Fortuna left but returned in ten minutes. According to the plaintiff, Ms Della Fortuna –
“… wasn’t in the best of moods because I kept saying ‘no’ to her and she said, ‘You have to get up, it’s compulsory that you play and you have to play’, and I said, ‘Like I said before, I’m not allowed to play. I’ve been told by my physio I can’t hop, skip or jump and I’ve got State trials on the weekend. I don’t want to risk hurting myself’, and … she said, ‘You have to play or there will have to be consequences if you don’t play’, and then I said, ‘I’ve been told’ – I kept repeating myself – ‘I’ve been told I’m not allowed to play, I’m not allowed to hop, skip or jump’, and she kept insisting that I get up and play or else I’ll get in trouble.”[38]
[38]T 61-62
75 According to the plaintiff, Ms Della Fortuna threatened her with detention during the week. She then went off –
“… in a bit of an angry mood and then she came back and said, ‘You have to get up’. Like she started to get, like raise her voice at me now like saying, ‘You have to get up and do this now or else you will get a detention and you’ll get into trouble’. And then I said, ‘Like I said a thousand times, ‘I can’t play, I’m not allowed to do this. Don’t force me to do something that I’m not allowed to do and you’ve been told that I’m not allowed to do it’.”[39]
[39]T 62
76 At this point, the students stopped playing because Ms Della Fortuna was raising her voice at the plaintiff. Ms Della Fortuna said:
“You just have to get up and participate. It’s compulsory, you have to do sport.”[40]
[40]T 62
77 By this stage, everyone was watching the plaintiff, and in the hope of getting her teacher “off her back”, the plaintiff decided to join in. According to the plaintiff, she felt pressured to participate because her classmates were watching. She felt she could engage passively by standing up at the back of the field watching the game. This did not satisfy Ms Della Fortuna, who then approached the plaintiff, saying:
“You’re not doing a good enough job in this game, what are you doing?”[41]
[41]T 63
The plaintiff replied:
“I can’t participate in this game because I will probably – I would hurt myself. I’ve got a taped ankle. Ms Lister has spoken to you. I’ve been told I can’t do it.”[42]
[42]T 63
78 Ms Della Fortuna ordered the plaintiff:
“Well you have to participate, you have to do it … You can’t just stand there and not do something, nothing … You have to do better than what you are doing now.”[43]
[43]T 63
79 The plaintiff reasoned to herself:
“I’ll do the one thing so she’ll just get off my back for a bit because everyone was watching me and she was starting to get like really loud with me.”[44]
[44]T 63-64
80 The ball was coming in the plaintiff’s direction, so she thought to herself:
“Alright, I’ll just do this … I’ll go do this one thing just for her to get off my back.”[45]
[45]T 64
81 The ball was up in the air –
“So I jumped, I was by myself and I jumped and said [to myself] ‘I better not go down on my right leg’ … I then jumped up … I was thinking to myself … ‘I better not land on my right ankle in case I twist it again really badly … I’ll put all my weight on my left leg’, and I came back down on the ground and it felt like someone just shot me in the leg in the back of my knee … I collapsed to the ground … when I got down to the ground it felt like people had just stabbed me in the back of the knee and it was just like so warm and really bad … I heard it, like someone just cracked my bone but it was a pop, like someone just hit me, broke my leg … I tried to get back up again … so I tried to stand back up again but that’s when everything, like it all came to my knee, and it just felt – it’s indescribable pain.”[46]
[46]T 64-65
82 The plaintiff was unable to stand, and collapsed back down on the ground. The pain was unbearable. At this stage, the play had moved to the other end of the field. About two minutes later someone saw her. Ms Della Fortuna came to the plaintiff and asked what was wrong. The plaintiff said:
“It’s my knee, it’s my knee, it’s my knee.”[47]
[47]T 65
Ms Della Fortuna said:
“Check your leg first.”[48]
[48]T 65
The plaintiff said:
“It’s not my leg, it’s my knee, it’s my knee, it’s my knee.”[49]
[49]T 65
83 Ms Della Fortuna asked the plaintiff to try and wiggle her toes, but the plaintiff explained the problem was with her knee. Ms Della Fortuna held the back of the plaintiff’s leg in the area of the knee and started to feel her leg. Again, the plaintiff said:
“It’s not my leg, it’s my knee.”[50]
[50]T 55-56
84 According to the plaintiff, Ms Della Fortuna stayed briefly but left when the school bell rang. Ms Della Fortuna packed up the equipment with the assistance of other children. M fetched Ms Hayley, who brought a wheelchair. The plaintiff was helped into the wheelchair and was taken to the first aid section, from where Mrs A was called. Soon after Mrs A arrived, she took the plaintiff directly to the Dandenong Valley Hospital.
85 At the hospital, x-rays and an ultrasound were taken. A pressure bandage was applied to help reduce the swelling because by this stage the plaintiff’s knee was “massive”.[51] The plaintiff’s pain was unbearable. The doctor at the hospital advised the plaintiff to see the physiotherapist the next day, after the swelling had gone down. Apparently the swelling impaired the capacity to diagnose the problem.
[51]T 66-67
86 The next day, the plaintiff saw the physiotherapist. By now the swelling was going down, but the pain was still quite bad. The plaintiff was unable to walk or bear weight on that leg. The physiotherapist advised her to see Mr Trivett and made an appointment for her. She was prescribed painkillers.
87 On Monday, 19 July 2010, the plaintiff saw her doctor, who referred her to Mr Trivett. She did not go to school.
88 On 21 July 2010, Mr Trivett examined the plaintiff. He ordered an MRI scan to confirm injury to the cruciate ligament. The MRI scan was taken on 23 July 2010.
89 On 27 July 2010, the plaintiff returned to Mr Trivett. He advised that the plaintiff would require knee reconstruction. The plaintiff did not cope particularly well with this news. The surgery could not be performed immediately because the knee was still swollen. The reconstructive surgery was performed on 25 August 2010 at Cabrini Hospital, Brighton. The plaintiff was scared of the operation. She had still not returned to school by this stage either. The plaintiff spent three nights in hospital. After the surgery, the plaintiff awoke to find her leg in a long splint from the upper thigh all the way down to the ankle. She was unable to move her leg. The plaintiff felt useless and was unable to get to the toilet without assistance. This embarrassed her.
90 Following discharge from hospital, the plaintiff spent the next six weeks at home, mainly on the couch with her leg elevated. She was given crutches but was unable to manage them well. Her parents had to help her do simple tasks. The knee gave her pain and there were spasms at times. She took prescribed painkilling medication, although she resisted taking them.
91 When she was able to return to school, the plaintiff was still on crutches and the splint was still in place. Once the crutches were removed, the plaintiff underwent rehabilitation, including therapy in the swimming pool three times a week. The aim was to try and build up her muscle again. Her mother drove her to and from these sessions and she waited for at least an hour whilst the plaintiff underwent her rehabilitation.
92 During this period of incapacity, Mrs A had to lend assistance, which began in the morning, and ended at night. Mrs A’s help included assisting the plaintiff out of bed and then taking her to the toilet, to the shower, up and down stairs and with dressing. At school, the plaintiff had the assistance of friends, who helped the plaintiff access her locker.
93 The therapy in the pool continued for months but the frequency was reduced to once a week. A pool was built at the plaintiff’s home and its steps were redesigned and modified to accommodate the plaintiff's incapacity. As at the date of the plaintiff’s evidence,[52] the plaintiff was still exercising in the pool.
[52]11 November 2011
94 In addition to this therapy, the plaintiff also had the assistance of a physiotherapist and a personal trainer to help with her rehabilitation. Mrs A would drive the plaintiff to and from physiotherapy and waited for the plaintiff while she was there. At first the physiotherapy sessions were three times a week for approximately two months, but then they reduced to twice a week for a couple of months, then once a week, then every fortnight and at the date of trial, once a month.
95 During physiotherapy sessions, the plaintiff works on flexibility, doing stretching and bending, and now tries to jump on a trampoline, although she still finds this difficult. She no longer takes painkilling medication. At the date of trial, the plaintiff was trying to work independently, doing most things by herself. Every night she spends at least an hour doing exercises set by her physiotherapist, including squatting and kneeling.
96 As to the consequences of the injury, the plaintiff claims that it has affected her emotionally. She comes to tears regularly because she feels she has lost everything. She is unable to play competitive hockey and this is a significant loss. She has recently returned to playing hockey but not at her previous level. Rather, she has joined a group of –
“… older ladies that played every weekend … not to be so competitive, because I didn’t want to hurt myself.”[53]
[53]T 77
97 She has not been able to do a full training session and her capacity for the game is considerably reduced:
“I can only hit the ball at the moment, I can’t do anything. I used to be able to … run, dive, anything special … I can’t do any of that.”[54]
[54]T 77-78
98 The plaintiff is incapable of playing a full game. She still requires assistance in donning the gear for the game –
“… because I can’t completely get down and bend and put everything on.”[55]
[55]T 78
99 Although she can now run, it is not to the same extent as before the injury:
“I could probably do half a k [scil kilometre] full on running at most. My knee just won’t let me do anything … I’ll go for about 100 metres, and then it feels like it’s just going to collapse, my whole knee … . It feels like someone’s just stabbing me with hot knives … . At the back of the knee.”[56]
[56]T 78
100 As to daily living activities, as at trial, the plaintiff felt it had only been in the last three weeks that she was able to go to the shower by herself without her mother waiting outside:
“I still have to get up an hour before I would have to just to get out of bed, ‘cause when I wake up in the morning my knee’s … really stiff, so I have to wait about ten to twenty minutes just trying to straighten out my leg properly.”[57]
[57]T 79
101 She is unable to bend and twist and turn her knee in the same way as she did before the injury. If the plaintiff sits for a considerable period she feels that she has to keep moving. She cannot keep her legs crossed for a extended periods of time:
“I can’t sit for a long period of time without straightening it and then bending it again. … It just gets unbearable, the pain.”[58]
[58]T 80
102 In addition to the loss of capacity, the plaintiff has gained a considerable amount of body weight. Before the injury, she weighed 76 kilograms. Her muscles were well developed and toned. At trial, her weight was 96 kilograms. She has lost muscle mass and notices a difference between the muscle mass and tone between her two legs. Before the injury, the plaintiff enjoyed a high level of physical fitness. Her level of fitness has since declined considerably:
“It’s just lost everything … sport for me … was an outlet … Now I can’t even go for a run to clear my head … I hate [my body].”[59]
[59]T 80
103 The plaintiff has become conscious about her body size and shape, given the 20 kilograms she has gained and the loss of muscle tone she has experienced. She has stretchmarks on her stomach, arms and on the back of her legs. Even in summer, she tends to wear clothes that hide her body, such as tracksuits and “hoodies”. She no longer wears a bikini. The surgery has left her with a scar, with associated ongoing symptoms:
“I could be sitting out in the sun one day … and it just feels like someone’s poured hot water on it, I’d feel that bad … all down the bottom of my left side is all numb … I can’t touch it, it just feels not right to touch … track suit pants will just irritate it so bad.”[60]
[60]T 81-82
104 The plaintiff dislikes the appearance of the scar on her knee. The plaintiff describes that she feels a –
“… completely different person from what I was.”[61]
[61]T 82
105 The injury and its consequences have also affected the plaintiff’s attitude and preparedness to associate with boys:
“I just don’t feel comfortable in myself to go out”.[62]
[62]T 83
106 Her social activities have also been affected:
“… I’d get invited to a party I’d go, I couldn’t do it because my knee just wouldn’t let me …
I could stand for about an hour and then nearly die because it’s in so much pain. So I can’t wear heels, I can’t do anything.”[63]
(sic)
[63]T 83
107 The plaintiff no longer socialises through the hockey club, although she has been to watch the team play, but this made her feel “useless”.
108 As to her future career, the plaintiff wants to join the police force and become a member of the Dog Squad. At the moment the plaintiff’s injury reduces her capacity to walk the family pet.
Cross-Examination of the Plaintiff
109 In cross-examination, the plaintiff agreed that it was a priority for both her and her mother that she [the plaintiff] “make sure everything was right to get [the plaintiff] into the state team”.[64]
[64]T 95
110 As to the conversation in Ms Lister’s office, the plaintiff agreed that there was discussion about the plaintiff being able to play in the boys’ hockey team.[65] There was also discussion about the plaintiff wearing non-school sports shorts.[66]
[65]T 99
[66]T 100
111 After the plaintiff confirmed that she told Ms Lister that she could not play sport that day because she could not run, jump, hop or skip, she asked Ms Lister for a note confirming that she was excused. Ms Lister told the plaintiff she did not need one because “I’ll go tell her”, as it was nearly snack time in the staff room.[67]
[67]T 100-101 and 102
112 The plaintiff agreed that there were other occasions when she was unable to participate in sport due to injury “a couple of times in Year 7 and 8”.[68] On those occasions, sometimes she had a note from her mother or a doctor and sometimes she did not.[69]
[68]T 104
[69]T 104
113 As to what occurred in Ms Hayley’s office, the plaintiff confirmed that she heard her mother authorise Ms Hayley to administer Panadol to the plaintiff during the day if necessary.[70]
[70]T 106
114 As to what happened immediately prior to the plaintiff joining the lacrosse game, the plaintiff confirmed the truth of the version given in evidence-in-chief.[71]
[71]T 110-111
115 It was put to the plaintiff that her version of the conversation with Ms Della Fortuna was inaccurate. Significantly, Mr Dyer asked:
“… what I’m suggesting to you is that you had a conversation with Ms Della Fortuna? … you told her that your ankle was strapped? … . And you told her your ankle was sore.”[72]
[72]T 112, L18-21
116 It was then suggested to her that Ms Della Fortuna said:
“Well just do what you can. … Do what you think you are able to.”[73]
[73]T 112, L22-24
117 The plaintiff disputed that this accurately reflected the discussions with Ms Della Fortuna.[74]
[74]T 112
118 It was also put to the plaintiff that her version of the conversations in Ms Lister’s office and Ms Hayley’s office was incorrect. The plaintiff disagreed.[75] It was further suggested to the plaintiff that as she was strong willed, had she not wanted to participate in the game, she would simply have walked off, saying, “I’m not doing that”. The plaintiff said she would not do that:
“I’m not rude like that, just to walk off from a teacher.”[76]
[75]T 113
[76]T 113
119 Ms Della Fortuna’s version was put to the plaintiff:
“You did your warm up with M [sic] …
… you and M [sic] were at the side, you certainly didn’t do the warm up with the other girls, but you were using the Lacrosse … Sticks …
And you were hitting a ball around and then it was suggested if you want to play, play but – I’ll put it precisely to you – you should participate in what you felt comfortable with.”[77]
[77]T 116. Although the transcript records the plaintiff responding apparently in the affirmative by stating “yeah, yeah”, her responses are also consistent with her simply listening to the version being put to her and acknowledging the difference, rather than being an affirmative response or concession.
120 As to how the accident occurred, the plaintiff was challenged about her claimed thought processes when deciding to land on her left leg rather than her right.[78] The plaintiff also denied that during the game she was “running around”.[79]
[78]T 117-118
[79]T 125
121 As to the alleged conversation with Mr Austin earlier in the day, it was put to the plaintiff that no such conversation occurred. The plaintiff responded:
“No. I’m 100 per cent positive that he spoke to me that day.”[80]
AMA[81]
[80]T 125
[81]T 141-206
122 Mrs A confirmed much of the background.
123 Taken to the day of the incident, Mrs A confirmed that the plaintiff wore her sports uniform in accordance with school requirements.[82] Due to the injury the previous evening, Mrs A iced her daughter’s ankle because when she woke up the plaintiff was still uncomfortable. Mrs A made an appointment for the plaintiff to see the physiotherapist at 8.00 am. She also gave the plaintiff Nurofen the night before and again that morning.[83] Mrs A drove her daughter to the physiotherapy appointment. She was in the room when treatment was administered. Mr Thomas:
“… gave her a rubdown, more suction cups, because it was a little bit swollen at the bottom, and he heavily taped it from the mid of the foot up to the mid of the ankle – the mid of the calf.”[84]
[82]T 152
[83]T 152
[84]T 153-154
124 The taping was visible above the height of the plaintiff’s socks.
125 After the appointment, Mrs A took her daughter to school. She then accompanied her into Ms Lister’s office.[85]
“When we arrived we went in and she said – the first question she asked was why was P late? And P showed her – her ankle and she said that she injured it the night before.
… P was talking - … to Miss Lister … Miss Lister [said to P] ‘You might as well go – the bell’s going to go for snack’, and P went in to see Miss Hellie [scil Hayley].”[86]
[85]T 154
[86]T 155
126 Mrs A also said that Ms Lister referred to the plaintiff’s bandage, and asked:
“How did you do it?”
to which the plaintiff explained that it had happened at training:[87]
“P explained that she injured herself on the Thursday night. Ms Lister said, ‘You silly thing’, was joking around with P. P said, ‘Yes’. P explained to her that … the reason why we went to the physio … and were late for school was because she had hockey trials on Sunday. Ms Lister said, ‘Not a problem’. P said Peter, her physio, explained that she wasn’t allowed to hop, skip or jump, and Ms Lister said, ‘Do you have PE today?’ and P indicated that she had. P then said that, ‘Do I need – can I go now?’ And she said, ‘You better go now, but it’s recess, go and speak to Ms Hellie [scil Hayley]’ and then I ended up speaking to Ms Lister about her sports uniform and whether there was any possibility of P playing in the boys’ hockey team.”[88]
[87]T 155
[88]T 156
127 There was then discussion about the plaintiff playing in the boys’ hockey team. There was also discussion about the plaintiff’s shorts. And there was also discussion about the plaintiff’s participation in PE that day.
“Ms Lister said that she’ll deal with it ’cause she was on her way to snack and she would speak to the teacher. I did not have to write a note or anything, she would deal with it.”[89]
[89]T 157
128 After speaking with Ms Lister, Mrs A went to Ms Hayley’s office and authorised her to give the plaintiff Panadol if necessary.[90] She then left the school and went to work.
[90]T 158
129 Mrs A next saw her daughter at about 3.50 pm that day in the sick bay. Her daughter was crying and was in a lot of pain. Her knee was swollen. She came to the school after receiving a telephone call from Ms Hayley:
“Ms Hellie [scil Hayley] informed me that P had injured herself at sport, and I was very angry over the phone. I think I actually was yelling at the poor lady, that P wasn’t supposed to be playing today with her ankle. Ms Hellie [scil Hayley] then proceeded to tell me that, yes, she knew about P’s ankle. I said, ‘How is she?’ She said, ‘She actually looks quite in shock’. She was very pale. She told me that she had to take the wheelchair out to the oval and pick P up, and she’s given her an ice pack and she’s raised the leg.”[91]
[91]T 159
130 Once Mrs A arrived at the school:
“Ms Lister was standing outside sick bay waiting for me to arrive. She told me not to stress about it and to wait and see … what the outcome is with P. She told me that her teacher had told her that she doesn’t think she’s broken anything ’cause she made her move her toes and she couldn’t see any break. She told me – from my understanding of being so angry, … I think I was screaming at her too asking her why she was – why she was participating in sport in the first case.
… she just told me to just worry about P and … just don’t show P that you’re upset.”[92]
[92]T 159
131 They then took the plaintiff to Mrs A’s work van using the wheelchair. Mrs A then took her daughter to hospital.
132 Mrs A gave further evidence as to the plaintiff’s medical treatment, pain, difficulties and problems associated in the aftermath of her injury. She also explained the level of assistance she gave to her daughter in the recovery period.
133 Mrs A also confirmed the extent of compromise to the plaintiff’s capacity to play hockey.
134 In cross-examination, Mrs A confirmed the personal difficulties that the plaintiff had experienced prior to the incident.
135 The day after the incident, Mrs A wrote a letter to Ms Lister.[93] In that letter, Mrs A said:
[93]Tendered as Exhibit 2
“I thought we should put this in letter form.
I am writing with regards to what happened on Friday 16.07.10.
P went in the morning to the physio to have her right ankle strapped due to having a hit on Thursday night at Hockey training.
I dropped her off around 10am and spoke briefly to you about another matter and explained also why we were late. We also let you know about what was happening on the weekend.
P then went to classes. The last two periods she had PE.
When she got to her class she informed Ms Della Fortuna that she would not be able to participate as she would be restricted in movement with the right ankle being strapped. Ms Della Fortuna proceeded to inform P that she had to participate. This is a girl who trains Tuesday: Thursday[,] plays Friday night and Saturdays and on the off days goes for a 5km to and [sic] 8km run. She then told Ms Della Fortuna about the weekend and she could not do it due to her commitments and didn’t want to hurt her ankle more than it was. Ms Della Fortuna would not hear her and again proceeded to tell her she had to participate.
I am very aware of the need to have children interact and due to P not being at school for the various reasons we all know. I still do not understand why Ms Della Fortuna forced the issue knowing full well her need to not participate. (HER INJURED ANKLE).
She then gave in knowing that she had to. …. Ms Haley [scil Hayley] then rang me to tell me that P had hurt her knee. I was so angry as how she did it I spoke then to P and she told me she did when she had to play Lacrosse on the hard courts. I was furious[.] [S]he told me over and over she told Ms Della Fortuna she wasn’t to play and showed her taped ankle, and told her about the trials on Sunday but, she just kept insisting. … I am amazed at the lack of understanding and that not all children put a fake on and not all children laze about and sport at school is the only form of exercise they get. She should have understood about the need for P to not get involved in Lacrosse that day and understood that the child had more to loose [sic] if she did get involved. Ms Della Fortuna has to see the student for what they are not just the whole class being involved.
This girl has been hanging on by a thread for the past year and a half. We have come to a breakthrough with counseling [sic] giving her a reason for school to become a police woman. … The only thing consistent in this girl’s life has been her hockey[,] the only thing that gets her out. Her drive to achieve under 15 goalie for Victoria at 14 she had achieved and her achievement has gone.
…
Have you got any idea the stupid mistake that one individual has cause[d] because, she had to be right.
…
Don’t you understand a duty of care? My husband and I do not understand how you can make a child participate in a sport knowing she is injured and can see she just got her ankle taped. That she would not be well balanced and in this case has proven that P over compensated and has now done her left knee. We are so angry words cannot convey how angry we are. This incident is so extremely negligent that we are looking at a few options.
We need to find out who you are insured with and to now work out also negligence.
… .”
136 Mrs A confirmed that her daughter was dressed in school uniform because it was compulsory on a Friday.[94] She did not write a note –
“… because I came straight from the physio that ended up strapping her ankle, and told her that she wasn’t to participate.”[95]
[94]T 190
[95]T 190
137 Mrs A confirmed that in the letter[96] she did not specifically say that she told Ms Lister that the plaintiff was not to play sport. She had, however, summarised the meeting.[97] She disagreed with the assertion that she did not tell Ms Lister that the plaintiff was not to participate in sport.[98]
Peter Francis Thomas[99]
[96]Exhibit 2
[97]T 190-191
[98]T 194-195
[99]T 207-238
138 Mr Thomas was the plaintiff’s physiotherapist. His report dated 16 September 2011 was tendered as Exhibit A.
139 Taken to the morning of the incident, he confirmed that the plaintiff presented –
“… with right posterolateral ankle pain.
…
She received heat on her calf, some electrical stimulation … of the joint followed by an icepack, and then she was taped, and my normal taping for an ankle injury of that nature is a basket weave tape, which is a fairly significant amount of tape, which requires almost three quarters of a tape roll. … she had full range of movement, there was no obvious swelling, or deformity. … I would suggest she had a mild to moderate sprain of her ankle.
… my standard basket weave tape … would extend from probably six to eight centimetres above the bony provinces of the ankle, and extend to just above the metatarsal … I then do a hell lock, which wraps around … the ankle joint itself, and then I close that down with circumferential taping all the way to … the top of the tape which would finish again six to eight centimetres above the … of the ankle. So it’s a fairly substantial tape.”[100]
[100]T 210-211
140 Mr Thomas said that the taping would restrict the plaintiff’s movement quite significantly for some time but this effect would reduce after twenty or thirty minutes.[101]
[101]T 211-212
141 Mr Thomas noted that most of the plaintiff’s appointments had something to do with hockey:
“She was an elite hockey junior and there was always hockey, and hockey was a fairly large priority in her life.”[102]
[102]T 213
142 Although he did not recall the specific advice he gave to the plaintiff on that day:
“In most situations like that … I would give – general advice would be not to run, jump, hop, twist it for the next 24 to 48 hours.”[103]
[103]T 213
143 Mr Thomas also gave evidence as to some of the treatment following the incident.
144 In cross-examination, Mr Thomas said that despite giving advice to the plaintiff on many occasions:
“I think in view of P’s age and children, and I do see a lot of children, I do talk a lot to the parents and I do talk a lot to the child to make sure that they understand what I’m asking them to do. So despite the fact that I’ve seen P on a number of occasions I think there is still the need to reinforce the fact that the reason why I’m strapping this ankle is to make sure you don’t do it again.”[104]
Adrian Justin Trivett[105]
[104]T 226
[105]T 244-269
145 Mr Trivett, specialist orthopaedic surgeon, performed the surgery on the plaintiff’s knee. His report dated 2 May 2011 was tendered as Exhibit B. His operation record was tendered as Exhibit C.
146 Mr Trivett explained the nature of the plaintiff’s injury and the aim of the surgery. He considered that following surgery, the plaintiff made an excellent recovery, achieving full range of motion, good quadriceps and hamstring muscle strengths and excellent knee stability.[106] He conceded, however, that after such an injury, there is an increased chance of arthritis.[107]
[106]T 248
[107]T 250-251
147 Mr Trivett also wrote three letters to the plaintiff’s doctor, Dr Janet Hong.[108]
[108]Exhibit 4 – letter dated 21 July 2010; Exhibit 4 – letter dated 11 January 2011 and Exhibit 6 – letter dated 29 March 2011
148 On the question of the causal nexus between the plaintiff’s ankle injury and the injury sustained while playing softcrosse, Mr Trivett was asked:
Q:“If the evidence before the court that’s accepted is whilst a ball is being hit to this young lady, she makes a conscious decision that because her right ankle is strapped she’ll protect that ankle, and she’ll in some way jump, but then modify her landing and in so modifying the landing suffers the ACL. If that hypothesis is accepted you’d agree that it’s reasonable that in some way the injury to the left knee is causally related to the right ankle?---
A: That would be reasonable.”[109]
Michael David Jones[110]
[109]T 266
[110]T 269-277
149 Mr Jones, sports administrator, was the plaintiff’s hockey coach. The plaintiff was one of a talented group of juniors also playing seniors.[111]
“… she was a goal keeper. She was a good solid committed player in 2009. … P was a consistent player. She played goal keeper all that year.
…
She was a very solid goal keeper. She was very technically sound, which is surprising at that age. A lot of females are not all that coordinated going through those years, for a number of reasons, but she was very solid in goals.”[112]
[111]T 271
[112]T 271-272
150 Mr Jones described the process of State selection. He explained that a knee injury would make it impossible to play as a goal keeper because –
“There’s so much lateral movement. I mean it’d be tough to play hockey full stop, but especially as a goal keeper, there’s so much lateral movement required to get across the face of the goals, plus also the ability to have to get up and down off the ground, … it’d be impossible.”[113]
Kevin Francis King[114]
[113]T 274
[114]T 279-307
151 Mr King, director of orthopaedic surgery, wrote a report dated 5 July 2011, tendered as Exhibit D.
152 In Mr King’s opinion, the plaintiff had not achieved a perfect recovery:
“… here is a teenager who got to a pretty high level in the under 15 Victorian team. It sounds to me pretty important. She’s obviously an obsessive sportsperson. If you have any sort of disability or serious injury your chances of getting back to what you were if you were at that level of sporting ability is not good, so I’ve taken that into account when I’ve assessed her as being 20 per cent as a sort of base experience, it’s not an exact figure … .”[115]
[115]T 285
153 Mr King confirmed that the plaintiff no longer has a “normal knee”[116] but it is not quite a stable knee. The plaintiff has an increased chance of getting secondary osteoarthritis.[117] It is possible that she may ultimately need a total knee joint replacement.[118]
ML[119]
[116]T 286
[117]T 286
[118]T 288
[119]T 310-323
154 M was also a student at the school. On the day of the incident, M went to school dressed in her PE uniform. She, too, was scheduled to participate in PE but was unable to do so as she had sprained her left ankle. She had been attending a physiotherapist and her ankle was taped. The tape came up to her shin, a bit over her socks, and was visible.[120]
[120]T 313
155 M and the plaintiff were not in the same class but knew each other. M participated in a conversation between the plaintiff and Ms Della Fortuna. She heard the plaintiff tell Ms Della Fortuna that she was unable to play due to her ankle. Ms Della Fortuna said something to the effect that the plaintiff had to play. At this time the other students were warming up and doing other activities. M also heard the plaintiff tell Ms Della Fortuna that she was unable to play due to an injury and did not want to risk further injury.[121]
[121]T 314
156 Ms Della Fortuna responded to both girls, and to “save an argument and any other consequences that may have happened,”[122] the girls participated. Towards the end of the game, M turned around and saw the plaintiff on the ground. The plaintiff was trying hard not to cry.[123]
[122]T 314
[123]T 315
157 In cross-examination, M agreed that normally if she was not to play sport, either her mother or her physiotherapist would write a note.[124] On this day, she had no note because her mother left early. Before participating in the game, she and the plaintiff were on the sidelines gently knocking the ball to each other with a bat. M agreed that Ms Della Fortuna said:
“Well, look really you should participate if you can.”[125]
[124]T 317
[125]T 319
158 The two girls then played in the game. They joined the game at approximately the same time. M also agreed that the plaintiff participated very well and was one of the better players.[126] She did not, however, cover the full court.[127]
[126]T 320
[127]T 321
159 When asked by me what made M think that she had to play in the game, she responded:
“I'm not sure. Just because it was … You need to participate in everything.”[128]
[128]T 321
160 If the teacher had not said that, M would not have participated because –
“I had been strictly told by my mother that I was not to play any sport at school and I wasn't going to risk hurting my ankle for the fourth time.”[129]
[129]T 321-322
161 Asked why she disobeyed her mother and listened to Ms Della Fortuna, M responded:
“Because I wanted to save the argument and not have any consequences afterwards.”
162 She was not completely sure what those consequences would be, but –
“I know it would have been detention.”[130]
[130]T 322
163 Before closing the plaintiff’s case, Exhibit E, statement pursuant to s28LZM of the Act dated 10 November 2011, and Exhibit F, certificate of assessment of degree of impairment arising from stabilised injury under s28LN of the Act dated 5 July 2011, were tendered.
164 The parties agreed the plaintiff’s past medical expenses at $16,104.96.
The Defendant’s Case
165 The defendant called the following witnesses:
· Clive William Jones, orthopaedic surgeon
· Gillian Margaret Lister, assistant principal
· Sarah Jane Sanders, teacher
· Adam Benedict Austin, co-ordinator
· Laura Maria Della Fortuna, teacher
· Julie Dawn Leeson (nee Hayley), first aid officer.
166 In addition, the following Exhibits were tendered:
· Copies of the Attendance Register, Parkdale Secondary College for the plaintiff: Exhibit 1
· Letter from Mrs A, the plaintiff’s mother, to Ms Lister, assistant principal, dated 17 July 2010: Exhibit 2
· Sport report for Semester Two 2009 of the plaintiff: Exhibit 3
· Letter from Mr Trivett to Dr Hong dated 21 July 2010: Exhibit 4
· Letter from Mr Trivett to Dr Hong dated 11 January 2011: Exhibit 5
· Letter from Mr Trivett to Dr Hong dated 29 March 2011: Exhibit 6
· Report of Mr Clive Jones, orthopaedic surgeon, dated 8 November 2011: Exhibit 7
· Statement of Ms Della Fortuna: Exhibit 8
· Notes of Ms Lister dated 16 July 2010: Exhibit 9
· Note apparently made by Ms J Hayley headed: “PA 8I incident”: Exhibit 10
· Document signed by Ms Lister dated 16 July 2010: Exhibit 11
· Detailed Accident/Injury Report dated 5 October 2010 and Department of Education Training form: Exhibit 12
· Note of Ms Leeson titled “PA 8I incident”: Exhibit 13
· Submissions on behalf of the defendant: Exhibit 14.
Clive William Jones[131]
[131]T 327-344
167 The report of Mr Clive William Jones, orthopaedic surgeon, dated 8 September 2011 was tendered as Exhibit 7.[132]
[132]T 327-344
168 Mr Jones agreed that:
“It takes a long time to get over a knee construction.”[133]
I don’t think this young lady is out of the woods as yet, she has some rehabilitation to go. The quadriceps is wasted … Her flexion is reduced and I don’t think that she has achieved optimum function as well.”[134]
[133]T 329
[134]T 330
169 In cross-examination on the question of causation, Mr Jones dismissed any connection between the plaintiff’s ankle injury and this injury:
“I just think that this is a new injury of a sporting nature in a rather stocky young lady and the ankle injury did not have any bearing or effect on that.”[135]
[135]T 336
170 As to the future, Mr Jones agreed that the plaintiff has –
“… a somewhat vulnerable knee, depending on what sort of treatment [she] gets.”[136]
Gillian Margaret Lister[137]
[136]T 339
[137]T 344-347 and T396-467
171 At the relevant time, Ms Lister was assistant principal. On the morning of the incident, she recalled the plaintiff and her mother coming to her office at about 10.30 am. Mrs A wanted to discuss two things:
(i) The plaintiff’s sports uniform; and
(ii) whether the plaintiff could play in the boys’ hockey team in due course, as there were insufficient girls to make up a separate team.[138]
[138]T 345-346
172 At the end of the meeting, Mrs A and the plaintiff left to sign in because of the plaintiff’s late arrival at school. Ms Lister said that she would talk to the sports coordinator about the plaintiff playing hockey with the boys.[139]
[139]T 346
173 Ms Lister said that, to her recollection, nothing was said in this meeting about the plaintiff not participating in any sporting activity that afternoon. Rather, the discussion was that the plaintiff would not be able to play hockey that day with the boys and –
“… would need to go to the activity that she had been allocated to, and both Mrs A and P seemed quite happy with that when they left my office. There was no talk about her not participating in sport on that particular day.”[140]
[140]T 399
174 She agreed however, that she was told that the plaintiff was late for school that day because she had been to the physiotherapist.
“She was wearing her sports uniform, although the wrong shorts, and … the conversation was that she would play sport that afternoon in the elective that she had been put down for, but the next week she would probably go to boys’ hockey.”[141]
[141]T 399-400
175 As to the school policy for excusing students from participating in sport, parents were required to write a note to the effect that the student was not allowed to play, and this note would be passed to the sports teacher. Students who are not dressed in sports uniform are also not permitted to participate in sport.[142]
[142]T 400-401
176 Ms Lister did not recall having any discussion with Ms Della Fortuna that day about the plaintiff’s involvement in sports that afternoon. Ms Lister learnt that the plaintiff was injured whilst participating at about 3.00 pm when she was called to the first aid room by Ms Hayley:
“She called me into her office because she was on the phone to Mrs A who was quite distressed, because Julie [Ms Hayley] had phoned her to inform her that P had injured her knee, and when Mrs A was getting a bit difficult for Julie to deal with I went in and spoke to Mrs A on the phone and said to her that P was injured, did she want me to call an ambulance, and she said, ‘No, I’ll come’. She – I had to calm her down, she was sort of saying that P should not have been playing sport, and I said, ‘Well, A, that was not said. P turned up in her sports uniform this morning. You and I had a conversation about her playing sport this afternoon’. A did not respond to that, and she said, ‘I’ll come and get her now’.”[143]
[143]T 401
177 Ms Lister was present when Mrs A arrived to collect the plaintiff and Ms Lister helped the plaintiff into Mrs A’s car. Ms Lister later asked Ms Della Fortuna to write an accident report.[144] The following week, Mrs A rang, wanting to have a meeting about the accident and asking about insurance. She also sent a letter, tendered as Exhibit 2. I have already referred to Exhibit 2.
[144]T 402
178 Ms Lister received two documents, both dated 20 July 2010, from Ms Della Fortuna. These were tendered as Exhibit 8. Ms Lister made two notes, both dated Friday, 16 July 2010, one unsigned, Exhibit 9, and one signed, Exhibit 11. She also received a letter, undated, from Ms Hayley, tendered as Exhibit 10.
179 Ms Lister confirmed that she made her notes –
“… so that we can refer back to it if we need to where there are accidents. And the other one is – I’ve prepared, because there was the accident and I – whenever there’s – something like that happens I need to make notes, so that I can remember what has happened, because I deal with lots of incidents during any one day.”[145]
[145]T 408
180 As to the meeting a week after the incident, Ms Lister was asked whether there was any discussion about what had been said as to the plaintiff’s participation or non participation in the sport that afternoon.
“There was some talk I believe, and at that stage we believed that there was no pressure put on P to participate, that normal school procedures had been put in place.”[146]
[146]T 408
181 Ms Lister said she did not think there was any written policy regarding whether a student was required to produce a note if he or she was not to participate in sport. It was part of the school’s daily procedures.[147] Notes can be given by the parents via the student’s organisers so long as the request is clear and has obviously come from the parent.[148]
[147]T 408
[148]T 409
182 As to the meeting on the morning of the incident, Ms Lister said:
“I’m quite clear that there wasn’t [any request made by Mrs A that P not participate that afternoon] and I’m quite clear that we discussed P playing sport in her allocated elective … that afternoon.”[149]
[149]T 409
183 Under cross-examination, Ms Lister confirmed the previous difficulties the plaintiff had experienced and the measures that were put in place to assist her. Initially the school started off with a “disciplinary approach”[150] but this later changed to a “wellbeing approach”.[151]
[150]T 412
[151]T 413
184 As to the meeting on the morning of the incident, Ms Lister agreed that the first bell for students is at 8.35 am and form assembly starts at 8.50 am. The plaintiff and her mother arrived at her office at approximately 10.30 am. The plaintiff was wearing a navy blue school sports top and sports shoes.
“My mental picture of her is that she … was wearing socks. Socks are something that’s a bit of an issue at school, so I do tend to notice socks. … They’re not supposed to wear socks that are below the ankle. … So the sock is meant to come up above the ankle.”[152]
[152]T 426-427
185 Ms Lister believed that the plaintiff’s socks were above her ankles.[153]
[153]T 427
186 Ms Lister noticed that one of the plaintiff’s ankles was taped but she saw no sign of pain, limping or anything like that. She seemed to be in high spirits.[154]
[154]T 427
187 Ms Lister agreed that she had made no reference to her observation of the plaintiff’s taped ankle until cross-examined.[155]
“The only reason that I would not have mentioned the taping was that I didn’t – it wasn’t there as a compromise to her ability. She … Mrs A told me that she had … my reason was that I knew she had been to the physio, I had heard that these things were going well, that she was looking forward to training on the weekend. And I’m quite familiar with strapping myself, I’ve had to do that and I know it’s not because it’s compromised to my fitness. … My mental image would be that [the taping] was quite low … on the leg, so not very – not – just protruding above the – the sock, yes.”[156]
[155]T 428
[156]T 429-430
188 Ms Lister was asked some general questions about school policy when students seek to be excused from participating in sport. She said that if a student came to her office late for school and simply said, without a note from the parent:
“Look, I'm not well and I'm not able to play sport today”
or
“I've got an injury, I can’t play sport today”,
her response would have been:
“Have you brought a note from home?”
189 If the answer was, “no”, she said she would ring home and check. If she could not contact the parent:
“I would question the student as to how severe the injury was, and if the student said, ‘Well I really don’t feel well enough to play sport’, I would make alternative arrangements. And those arrangements can be that the child might go to the sports class, and sit out. It might be that they go to the library and catch up on homework, and other occasions they sometimes sit outside my office and catch up on their work.”[157]
[157]T 430-431
190 She agreed that it is not an invariable policy that if a student does not have a note they must play sport. Students are not allowed to play if they are not in sports uniform, although there are exceptions.[158] Ms Lister agreed that if a student turned up late for school accompanied by a parent and the parent, without offering a reason, said they did not want their child to play sport that day, the school would abide by that decision:
“We cannot overrule parents.”[159]
[158]T 431
[159]T 431-432
191 In such a case, Ms Lister said she would take further steps to ensure the message was communicated to the sports teacher. This could be done by writing a note in the student’s organiser or by direct verbal communication with the sports teacher.[160] Teachers would be expected to adhere to Ms Lister’s direction in this regard but if they had a problem with her decision, they could come and talk to her about it, although they would not overrule her decision.[161]
[160]T 432
[161]T 433
192 If a student turned up with some strapping and indicated a level of uncertainty about whether he or she should participate in sport, Ms Lister said she would first ask if the student had brought a note from their parent. If the answer was negative:
“I would say, ‘Well, is your injury likely to prevent you from participating? Is it too sore? Are you in pain?’ and if the answer to that was ‘yes’, then I would say, ‘well, sit out. … and help score’.”[162]
[162]T 435
193 In such a situation, Ms Lister said she would give the student the benefit of the doubt and –
“… I would not want to put a student at risk …”.[163]
[163]T 436
194 Ms Lister agreed that, as assistant principal, she would have authority to excuse the student, as would a PE teacher.[164]
[164]T 436
195 Ms Lister conceded that in reality a student could be excused from participating in sport even if there was no note from a parent.
“It’s very difficult when you’re dealing with young people to have hard and fast rules. If students say that they are sick, then we give them the benefit of the doubt and act on that. So like if a student comes to me feeling ill I will normally send them around to sick bay; sometimes I might have to deal with it myself but if a student says that they’re sick or in pain, then I would treat it as though that is the truth.”[165]
315 Accordingly, I would find that this failure constituted a breach of the duty owed to the plaintiff to ensure she was kept reasonably safe from harm.
Did Ms Della Fortuna “force” the plaintiff to play?
316 It must be appreciated that what Ms Della Fortuna intended to convey to the plaintiff and what the plaintiff actually understood her to convey may be very different.
317 I accept that because of what Ms Della Fortuna said, the plaintiff felt compelled to play. It must also be remembered that the teachers exercised control over their students, their activities and particularly, the pursuit of sport. Students’ non-compliance with teachers’ directions could result in punishment, such as detention.
318 It stands to reason that Ms Della Fortuna’s purpose in encouraging the plaintiff to participate was to exercise control over her. Her aim was to achieve the plaintiff’s participation. The plaintiff had no note and she was mindful that some students fabricate excuses to avoid playing sport. Her approach of “encouraging” participation in sport accorded with her belief of school policy. I accept the evidence of both M and of the plaintiff to the effect that the plaintiff informed Ms Della Fortuna that she was unable to play due to an injury and that she did not want to risk getting it hurt.[295] I also accept their evidence that despite this, Ms Della Fortuna said something to the effect that the plaintiff had to play. Even M played contrary to her mother’s strict instruction not to. It is unlikely, given the circumstances to which I have already referred, that the plaintiff would have participated in the game unless she felt compelled to do so.
[295]T 314
319 Within minutes of sustaining her injury, the plaintiff kept repeating to Ms Hayley that she was not meant to be playing sport that day. I accept Ms Hayley’s evidence in that regard. I do not think it likely that in this moment of extreme pain and distress, that the plaintiff had the presence of mind (or capacity) to concoct a self-serving statement to this effect in anticipation of a potential lawsuit.
320 Although I accept there has been an element of exaggeration in the plaintiff’s account as to the number of times Ms Della Fortuna spoke to her, and also as to Ms Della Fortuna’s tone, I am nevertheless satisfied that she was abrupt and overbearing. I am further satisfied that when Ms Della Fortuna “told” the plaintiff to participate in the activities she felt comfortable she could do,[296] or that she “should” participate in what she felt comfortable with,[297] the plaintiff took this to be a direction, not an invitation or suggestion that she was free to decline.
[296]Exhibit G
[297]Exhibit 8
Is the absence of a note significant?
321 There is no dispute that Mrs A did not write a note directing that the plaintiff not play sport that day. However, I do not consider this to be a significant factor. I am satisfied that Mrs A most likely told Ms Lister that her daughter was not to play sport and that Ms Lister should have communicated this either in writing or orally to Ms Della Fortuna, but forgot to do so. Even if Mrs A did not tell Ms Lister that the plaintiff was not to play sport that day, that does not absolve the school of responsibility.
322 As Mr Dyer properly conceded, the school has a non-delegable independent duty of care to take reasonable care for the safety of its pupils. This is particularly so, because at the critical times the plaintiff was beyond the control and protection of her parents and was under the control of the school and its teachers, who were positioned to exercise control and authority over her.[298]
[298]Richards v Victoria (supra) at page 136
323 Even if there had been no meeting between Ms Lister and Mrs A that morning, once Ms Della Fortuna became aware of the plaintiff’s complaint and of the strapping to her ankle, she was duty bound to take reasonable care for the plaintiff’s safety regardless of whether a note had been provided.
Is it significant that the plaintiff was wearing her sports uniform?
324 Friday, 16 July 2010 was sports day for the plaintiff. Wearing the sports uniform was compulsory on a sports day, even though PE did not start until after lunch.
325 The plaintiff dressed for school before she went to the physiotherapist. She was taken from physiotherapy directly to school. She was already late. She did not go home and change out of her sports uniform.
326 When they arrived at the school, both the plaintiff and Mrs A went to Ms Lister’s office, where Mrs A told Ms Lister that the plaintiff was not to play sport that day.
327 That instruction stood regardless of what the plaintiff was wearing.
328 Although when the plaintiff presented to Ms Della Fortuna in her sports uniform, Ms Della Fortuna might initially have assumed that the plaintiff would be participating in sport, it was soon evident that the plaintiff’s ankle was strapped, she complained of a sore ankle and that she “could not do it”. Ms Della Fortuna had no reason to suspect that the plaintiff was lying or had staged her ankle tape. Nor did she testify that this thought ever crossed her mind.
329 It does not follow that because the plaintiff was in sports uniform she was fit to play sport or agreeing to participate in it. That she was in sports uniform does not, in any way, reduce the extent of the duty of care that she was owed.
(e) Has the plaintiff suffered harm loss or damage?
Yes.
330 It is not disputed that the plaintiff was injured in the way alleged and that she has suffered harm, loss or damage. The extent of the harm, loss or damage is in dispute.
(f) Was the defendant’s negligence a cause of the injury?
Causation
331 The plaintiff bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.[299]
[299]s52 of the Act
332 The Act provides that causation comprises two elements: “factual causation” and “scope of liability”.[300]
[300]s51 of the Act
333 For present purposes, I need only refer to factual causation – that the negligence was a necessary condition of the occurrence of the harm.[301] This is essentially what was known as the “but for” test of causation at common law. According to this test the plaintiff must prove that but for the negligence of the defendant, her injury would not have occurred.
[301]s51(1)(a) of the Act
334 The Act further provides:[302]
“ If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.”
[302]s51(3) of the Act
335 By all accounts, the plaintiff brought to Ms Della Fortuna’s attention the fact that she had a sore ankle: “couldn’t do too much, couldn’t do it”. The plaintiff did not participate in the group warm up. She did not participate in the softcrosse game until “encouraged” to do so by Ms Della Fortuna and then only with the caveat that she was only to do what she was comfortable with. Accepting for the sake of argument that Ms Della Fortuna “encouraged” the plaintiff to play, even though she had insufficient information to assess whether this “encouragement” might expose the plaintiff to risk of harm, then but for this encouragement, the plaintiff would not have participated in the game.
336 I am also satisfied that there is a direct causal nexus between the plaintiff’s ankle injury and the injury she sustained while playing softcrosse. As I stated previously, the plaintiff compensated for her ankle injury. I accept that the plaintiff deliberately chose to land on her uninjured foot in an attempt to protect her injured ankle. But for her injured ankle, the plaintiff would not have adjusted her landing in this way, and she would not have been injured. In this regard, I accept Mr Trivett’s evidence as set out in paragraph 148 hereof.
337 I am satisfied, on the balance of probabilities, that the plaintiff would not have been injured but for the defendant’s negligence and that therefore factual causation is established.
338 Accordingly, I answer Question 1: Was there negligence on the part of the defendant, its servants and/or agents which was a cause of the plaintiff’s injury, in the affirmative.
Question 2: In what amount do I assess the plaintiff’s damages?
339 Damages are to be awarded by way of fair and reasonable compensation, injury, loss and damage caused to a party by the fault of another. Their object is to compensate, not to punish. The award is made in “today’s money” and is on a “once and for all” basis.
340 Mr Jewell urged me to award general damages to the plaintiff in the amount of $175,000.00. On the other hand, Mr Dyer submitted the appropriate range is between $80,000 and $120,000.
341 Special damages, to cover medical and like expenses, were agreed in the sum of $16,104.96.
342 In addition, the plaintiff claims a further sum of $14,336.00, representing gratuitous care, as set out in the table below:
Type of Care Number of Weeks Number of Hours Total Homecare assistance 26 364 $8,736.00 Physiotherapy assistance Ongoing 63 to date of trial 172 $4,128.00 Personal training Between 9 and 18 27 $648.00 Pool therapy 6 9 $216.00 Future physiotherapy assistance 8 16 $608.00 GRAND TOTAL: $14,336.00
General Damages
343 In making an award for pain and suffering damages, I must take account of pain, suffering and loss of enjoyment of life, past, present and future. In fixing the damages, I take into account the following facts:
The nature and extent of the physical injury
344 The plaintiff suffered a complete rupture of the anterior cruciate ligament (“ACL”) with bone bruising.
“… when it happened it felt like someone shot me … when I got down to the ground it felt like people had just stabbed me in the back of the knee, it was like so warm and really bad and hot … it was a pop. I tried to stand back up … it was indescribable pain.”[303]
[303]T 64
345 Immediately after the injury, Ms Hayley took the plaintiff to the first aid office by wheelchair. Thereafter, Mrs A took her daughter to the Dandenong Valley Hospital, where she underwent x‑rays and an ultrasound. A pressure bandage was applied. The plaintiff’s knee was swollen, it was “massive” and the pain was unbearable.[304]
[304]T 67
346 The next day, the plaintiff attended the physiotherapist. Her knee swelling was reducing, but the pain was “still pretty bad”.
347 She was unable to weight bear and could not walk. Arrangements were made for her to see Mr Trivett. The rest of that weekend, the plaintiff rested with her leg elevated. She spent the majority of her time on the couch or in bed. She took Panadol to relieve the pain, but this did not really help.
348 On 19 July 2010, the plaintiff attended Dr Hong and was referred to Mr Trivett. On 21 July 2010, the plaintiff first saw Mr Trivett. He arranged for the plaintiff to have an MRI scan to confirm the tentative diagnosis of ACL injury. The MRI scan was performed on 23 July 2010. It was a scary experience for the plaintiff. On 27 July 2010, Mr Trivett reviewed the plaintiff. He recommended knee reconstruction, but this could only be performed after the swelling had subsided.
349 In this period between injury and surgery, the plaintiff was scared. Her mother said the plaintiff “just went into a hole”.[305] Every day the plaintiff complained of pain and cried. She described this as the most dramatic period in her daughter’s life and that her hockey was “gone”.
[305]T 161
350 The plaintiff required surgery and ongoing treatment thereafter. Although she has made a good recovery, the reconstructed knee is not perfect. It is likely that the injury will have long-term consequences, including an increased risk of osteoarthritis.
351 The surgical repair of the plaintiff’s ACL was performed using hamstring tendon grafts under general anaesthetic on 25 August 2010. The plaintiff was then fourteen years of age.
352 The surgery is well described in Mr Trivett’s operation notes.[306] The plaintiff spent three nights in hospital. When she awoke, a Zimmer splint was in place from high on her thigh down to her ankle. She was unable to move her leg. She had to learn how to get out of bed and use the toilet. She felt useless and embarrassed by these restrictions.
[306]See Exhibit C
353 Following surgery, the plaintiff missed ten weeks of school. In the immediate post-surgery period, the plaintiff needed extensive assistance, but was largely confined to lying on the couch. She was on crutches and needed help, even to do simple things such as showering and going to the toilet. She had pain and knee spasms. She continued to take pain-relieving medication. The plaintiff remained on crutches for approximately six weeks, but was still using them when she returned to school. At school, she relied on help from classmates.
354 Rehabilitation commenced in September 2010 and involved physiotherapy, pool therapy, personal training and home exercises. For the first three months, physiotherapy was three days per week. Then it reduced to twice per week for eight weeks, then once a week until approximately September 2011. Each session, including travelling to and from, required about two hours’ time. Thereafter, it further reduced to fortnightly, then once per month.
355 Personal training involved eighteen sessions, twice per week for nine weeks, from about the end of February 2011 to the beginning of March 2011. These sessions required one-and-a-half to one-and-three-quarter hours per session, including travelling time to and from.
356 Pool therapy involved four or five sessions, initially through Mr Trivett, and thereafter no more than six sessions. Each session of pool therapy was one-and-a-half hours, including travelling time to and from each session.
Impact of the injury
357 The plaintiff was a highly talented and committed hockey player. She had achieved much in this regard, including representing Victoria as hockey goalie. Her coach and trainer, Michael Jones, testified not only as to the plaintiff’s past achievements, but also as to her prospects in the future. In his opinion, the plaintiff would have succeeded in those trials:
“In the State championships I had P as one goal keeper and my other goal keeper was [F], and they alternated games as was policy to give everyone … a good opportunity. [F] made the State side … I think P was the better goal keeper.”[307]
[307]T 273
358 As I have previously said, the plaintiff not only missed out in selection for these trials, she has been unable to play at the elite level in which she previously played. As Mr Jones said:
“Any serious knee injury would make it impossible to play as goal keeper.”[308]
[308]T 274
359 Prior to the injury, the plaintiff derived great fulfilment from participating in hockey at an elite level. It provided a great source of relief from the traumatic experiences in her life, including her father’s ill-health, her brother’s mental incapacities and her schooling problems.
360 The plaintiff’s emotional response has been profound. In the period December to June 2010, a psychiatrist, Dr Burning, prescribed the plaintiff Aropax. She has gained considerable weight and her body image has become a problem for her. The loss of hockey has been a significant one for this plaintiff.
Ongoing issues
361 Because of the plaintiff’s lack of confidence, including no longer feeling comfortable around boys, her mother removed her from the school, which was co-educational, and enrolled her in a girls’ school.
362 The plaintiff has started running in the form of light jogging, but has not achieved her previous form. She still endures pain in her knee and sometimes feels she is going to collapse with pain. Although she can run, she can no longer achieve the distances she previously did.
363 She has regained some of her independence in daily living activities; however, her movements are still impaired. When she wakes in the morning, her knee is stiff and it takes twenty or so minutes to straighten her leg properly. She lacks the full range of movement she had before and cannot twist on the knee fully. She cannot cross her legs when seated and cannot sit for long periods of time without moving her leg to reduce pain. She has lost muscle and muscle tone and her two legs are different in this regard. She has lost general fitness and has become conscious of every part of her appearance: her legs; her upper body; stomach; arms and knees. She now has stretch marks as a result of gaining 20 kilograms. She modifies her choice of clothing to hide her body. She is conscious of her scarring, which is tender to the touch. Sometimes clothes irritate the scar. She has problems shaving her legs due to the scar. She cannot wear high-heels and does not socialise to the extent she did before.
Other Future Medical Issues
364 The preponderance of the medical evidence is that the plaintiff’s injury will likely have permanent, ongoing and future consequences.
Mr Trivett
365 As Mr Trivett said, following ACL injury and repair, the knee joint is never the same.[309]
[309]T 247
366 Further, the plaintiff has a greatly increased risk of post-traumatic osteoarthritis,[310] which manifests as pain and swelling, stiffness and loss of function to different degrees.[311] One in three people who suffer such an injury subsequently develop post-traumatic osteoarthritis to some degree.[312]
[310]T 250
[311]T 250
[312]T 251
Mr King
367 The plaintiff’s range of motion is limited but it might be expected to increase.[313] However, the plaintiff’s chances of returning to her earlier level of sporting ability are not good.[314] She does not have a normal knee and it will not quite flex. After the repair it is never normal.
“… you’re replacing an extraordinarily complex neuromuscular structure … which has its own nerve supply, with something passive, which is a tendon from the back of the knee. …
…
… it won’t be a normal knee, it will be limited in movement. … If the wasting of the quadriceps doesn’t build up, which it doesn’t always, that leaves the knee a bit more unstable and therefore a bit more likely to injury. … .[315] [Also] she’s got the laxity built in the cruciate ligament replacement … and that puts her at slightly more risk.[316]
She’s got a 20 per cent greater chance of osteoarthritis [to a fairly mild degree]. If she develops mild osteoarthritis by her 50s she’s more likely to require … joint replacement within the next 15 years.”
[313]T 283-284
[314]T 285
[315]T 286
[316]T 286-287
368 The plaintiff’s knee “will deteriorate” more than the average person’s if she develops osteoarthritis in her fifties.[317]
[317]T 287
Mr Jones
369 The plaintiff’s level of recovery is not complete, although sufficient to allow her to do limited activities.
370 In Mr Jones’ experience, it takes a long time to get over a knee construction.[318]
[318]T 330
371 The plaintiff is “not out of the woods as yet”. She has some rehabilitation to go and has not achieved optimum function.[319] No replaced ACL is going to do the same job as the one you are born with.[320]
[319]T 331
[320]T 333
372 The plaintiff has a somewhat vulnerable knee and an increased vulnerability of further damaging the repair by participating in hockey.[321]
[321]T 340
373 Taking all of these matters into account, I assess the plaintiff’s general damages at $175,000 (One Hundred and Seventy Five Thousand Dollars).
Gratuitous Care Damages
374 As to the additional amounts claimed in the table included above, the plaintiff is entitled to be awarded a sum fairly representing the value of gratuitous services past and future,[322] provided that the requirements of s28IA of the Act are met.
[322]Griffiths v Kerkemeyer (1977) 139 CLR 161
375 Section 28IA of the Act provides:
“ Limitation on damages for gratuitous attendant care
(1)No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—
(a)there is (or was) a reasonable need for the services to be provided; and
(b)the need has arisen (or arose) solely because of the injury to which the damages relate; and
(c)the services would not be (or would not have been) provided to the claimant but for the injury.
(2)Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided—
(a) for less than 6 hours per week; and
(b) for less than 6 months.”
376 I accept the evidence of the plaintiff and of her mother as to the extent of the gratuitous care provided. I am satisfied that there was a reasonable need for this care and that the services would not have been provided but for the injury, subject to the exceptions to which I will soon refer. Thus, the requirements of s28AI(1) of the Act are made out. But that is not the end of the matter. The two further prerequisites set out in s28AI(2) must also be established. The plaintiff must not only prove that the services were provided for no less than six months (sub-paragraph (b)), but also that these services were provided for no less than six hours per week (sub-paragraph (a)). I take this to mean that the plaintiff must prove that in each of the weeks in respect of which gratuitous care is claimed, no less than six hours of services were provided and that this must have continued for not less than six months. Even if the period of services extends beyond the six months, gratuitous care damages must be disallowed if the number of hours in any week claimed is reduced to below six. I am satisfied that the gratuitous care provided by Mrs A continued for six months. I am also satisfied that she provided at least one hour of gratuitous care per day during that six-month period. Thereafter, the care she provided was not significantly over and above that which she would otherwise have provided as a loving mother. In any event, I am not satisfied that the plaintiff has proved that, after this six-month period, the services provided involved no less than six hours per week, even after aggregating the hours referrable to assistance provided for the various items.
377 Mr Dyer conceded that the appropriate hourly rate for gratuitous care is $24.00.
378 Turning to each of the items claimed:
Homecare Assistance
379 I accept Mrs A’s evidence that she provided gratuitous care to the plaintiff to help her shower and dress. She also provided meals. I agree with Mr Dyer that some of these services, for example meals, would have been provided in any event. Care of the plaintiff for the first six weeks was more intensive than in the period thereafter. I would allow the plaintiff six weeks of home care at two hours per day (84 hours). Thereafter, twenty weeks at one hour per week (140 hours).
380 The next items must be seen relative to the six-month timeframe. I calculate that the plaintiff received gratuitous care involving no less than six hours per week until 14 January 2011.
Physiotherapy Assistance
381 I have already referred to the number of hours of assistance provided to take the plaintiff to and from her physiotherapy appointments. I accept Mrs A’s evidence that she took the plaintiff to and from physiotherapy sessions and waited while the plaintiff was receiving her treatment. This took approximately two hours per session. She did this from September until November 2010, three times per week.[323] This equates to 72 hours. From end November 2010 to 12 January 2011, physiotherapy was reduced to two sessions per week. I allow six weeks, equating to 24 hours. Thereafter, physiotherapy sessions were reduced to one session per week, at best involving gratuitous care of two hours. The physiotherapy sessions were further reduced to once a fortnight, and then once a month.[324]
[323]T 164
[324]T 164-165
Personal Training
382 Mrs A testified that the plaintiff commenced personal training at the end of February 2011 or the beginning of March 2011. There were two sessions per week at one-and-a-half hours per session, involving approximately three hours of personal care per week.[325]
[325]T 165
Pool Therapy
383 I am satisfied that the plaintiff probably had three sessions of pool therapy in December 2010 involving one-and-a-half hours of gratuitous care per session. I propose to allow three sessions. There were others, but I cannot be satisfied as to whether they occurred before or after 14 January 2011.
Future Physiotherapy Assistance
384 The expert medical evidence confirms that it is likely that the plaintiff will need ongoing physiotherapy.[326] However, the frequency of such treatment will be approximately one session every two or three months.
[326]T 165
385 I propose to allow Griffiths v Kerkemeyer[327]damages in accordance with the following table:
[327](1977) 139 CLR 161
Type of Care Number of Weeks Number of Hours Total Hours Total Homecare assistance 6
20
14 p/w
7 p/w
84
140
224
$2,016.00
$3,360.00
$5,376.00
Physiotherapy assistance September to November 2010 (12 weeks)
Thereafter, to 12 January 2011
(allow 6 weeks)
6 p/w
4 p/w
72
24
96
$1,728.00
$576.00
$2,304.00
Personal training February to March 2011 - less than 6 hours per week 0
0
0
Pool therapy
December 2010
-
4.5
$108.00
Future physiotherapy assistance Less than 6 hours per week 0
0
0
TOTAL:
$7,788.00
Question 3: Was there (contributory) negligence on the part of the plaintiff which was a cause of her injuries?
386 Division 7 of the Act applies:
“Division 7—Contributory negligence
62 Standard of care for contributory negligence
(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose—
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
63 Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”
387 The applicable legal principles applicable were not in dispute. The plaintiff owed a duty to take care for her own safety. I must consider whether the plaintiff did something that a reasonably prudent person of her age and experience would not have done[328] in all the circumstances or whether she failed or omitted to do something that a reasonably prudent person of her age and experience would have done in all the circumstances.
[328]McHale v Watson (1966) 115 CLR 199; Joslyn v Berryman (2003) 214 CLR 552; Astley v Austrust Ltd (1999) 197 CLR 1; Oyston v St Patrick’s College [2011] NSWSC 269; Sheldrick v State of New South Wales [2007] NSWCA 105
388 The onus of proving contributory negligence rests with the defendant. The standard of proof is the balance or probabilities. The school must prove that any failure to take reasonable care on the part of the plaintiff for her own safety was a cause of her injuries, loss and damage.
389 Mr Dyer quite properly and fairly narrowed the defence allegation of contributory negligence. Asked to identify what it was that the plaintiff did or failed to do to take reasonable care for her own safety, Mr Dyer said the defence case comes down to this.
“… When encouraged to participate [by Ms Della Fortuna, the plaintiff] should not have voluntarily participated given her … [experience as an elite athlete] …
…. if she appreciates that not only has she got a strapping on the ankle, but it really is restricting her and so she has to favour the other leg. And she feels she can’t hop, skip, run or jump and she’s on the court in that situation, then she is – forget about her age, she’s a State level hockey player. She should then have said, ‘No, this is hurting, not for me. I don’t care, detention, anything, I'm not playing.’ That’s what she should have done, should not have participated, and that would cover Particular B [of the pleaded Defence] as well, failing to use her commonsense.”[329]
[329]T 615
390 Mr Dyer submitted that if such a finding of contributory negligence was made, the majority of blame should be placed on the plaintiff’s shoulders. It is to be noted that Mr Dyer did not suggest that while playing the game the plaintiff did anything that she should not have or that she did not do something that she should have. Rather, the defence case is that the plaintiff should have disobeyed her teacher, rejected her encouragement and simply refused to play, even if this meant being punished for her disobedience. It will be recalled that when it was put to her in cross-examination that she should simply have refused to comply, the plaintiff said:
“I’m not rude like that, just to walk off from a teacher.”[330]
[330]T 113
391 I accept the plaintiff in this regard.
392 Even on the defendant’s case, the plaintiff did exactly what she was directed to do; that is, to modify her participation to the level she felt comfortable with. This is exactly what the plaintiff did when she landed on one foot to catch the ball in an attempt to protect her injured ankle. It is ironic that, on the one hand, the defendant says the school is not negligent because Ms Della Fortuna encouraged the plaintiff to participate to the level she was comfortable with but then says the plaintiff is negligent for doing the very thing the defendant asked her to do; that the plaintiff is negligent because she refused to do what her teacher directed her to do.
393 In my judgment, there is no basis to find that the plaintiff in any way contributed to her injuries. It is therefore unnecessary to consider Question 4, the reduction in damages referrable to contributory negligence.
394 I have answered the relevant questions in this case as follows:
Question 1:
395 Was there negligence on the part of the defendant its servant and/or agents which was a cause of the plaintiff’s injury?---
Answer: Yes.
Question 2:
If “Yes” to Question 1, in what amount do I assess the plaintiff’s damages?
General Damages: $175,000.00
Agreed Special Damages: $16,104.96
Griffiths v Kerkemeyer Damages: $7,788.00.00
__________
Total:$198,892.96
==========
Question 3:
Was there (contributory) negligence on the part of the plaintiff which was a cause of her injuries?
Answer: No.
Question 4: (not relevant).
396 Accordingly, I propose to enter judgment in favour of the plaintiff and make orders in accordance with these findings.
397 I will hear counsel as to the precise form of orders sought.
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