Gem v State of New South Wales

[2017] NSWDC 108

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gem v State of New South Wales [2017] NSWDC 108

Hearing dates:

23, 24 and 27 February & 28 April 2017 (close of submissions on 9 May 2017)

Date of orders:

19 May 2017

Decision date:

19 May 2017

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict for the plaintiff in the amount of $354,555;

 

2. I will hear the parties on the amount to be added to the verdict on account of funds management charges, and consequential orders, including as to costs;

 3. Liberty to apply on 7 days’ notice for other orders.

Catchwords:

TORTS – negligence – child with special needs absconding from one-on-one supervision at school climbing onto roof of a school building and falling thereby sustaining injuries – determination of liability of the school according to requirements of Pt 1A of Civil Liability Act 2002; DAMAGES – assessment of plaintiff’s entitlement to damages

Legislation Cited:

Civil Liability Act 2002, Pt 1A, s 5, s 5B, s 5C, s 5D, s 13, s 16, s 32, s 42
Court Suppression and Non-Publication Orders Act 2010, s 6, s 7, s 8
Crown Proceedings Act 1988, s 5
Evidence Act 1995, Dictionary cl 4(2), s 60
Government Information (Public Access) Act 2009
Law Reform (Vicarious Liability) Act 1983, s 8

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Baker v Willoughby [1970] AC 467; [1969] UKHL 8
Carmarthershire Country Council v Lewis [1955] UKHL 2; (1955) AC 549
Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258
Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270
Cox v State of New South Wales [2007] NSWSC 471
DMN Mining Pty Ltd v Barwick [2004] NSWCA 137
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Doubleday & Anor v Kelly [2005] NSWCA 151
Elayoubi v Zipser [2008] NSWCA 335
Faulkner v Keffalinos (1971) 45 ALJR 80
Geyer v Downs & Anor (1977) 17 ALR 408
Glen v Sullivan [2015] NSWCA 191
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
“H” v State of NSW [2009] NSWDC 193
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569
O’Brien v McKean [1968] HCA 58; (1968) 118 CLR 540
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
RHG Mortgage Ltd v Ianni [2015] NSWCA 56
Ramsay v Larsen (1964) 111 CLR 16
Redding v Lee [1983] HCA 16; (1983) 151 CLR 117
Richards v State of Victoria [1969] VR 136
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Solomons v Pallier [2015] NSWCA 266
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
State of Victoria v Bryar & Anor [1970] 44 ALJR 174
Strong v Woolworths [2012] HCA 5
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Williams v Eady (1983) 10 TLR 41 to 42

Category:

Principal judgment

Parties:

Gem (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Ms E Welsh (Plaintiff)
Ms G Mahony (Defendant)

  Solicitors:
Bourke Love (Plaintiff)
McCabes (Defendant)

File Number(s):

2016/64676

Publication restriction:

Yes

Judgment

Table of Contents

Nature of case	[1] – [2]
Non-publication order	[3]
Reasons for non-publication order	[4] – [6]
Brief factual background	[7] – [13]
Issues	[14]
Evidence overview	[15] – [16]
Credibility and reliability of testimony	[17] – [69]
Plaintiff’s mother	[18] – [20]
Plaintiff’s pre-injury history	[21] – [39]
Ms SSSSSSSSSS	[40] – [42]
Mr CCCCCC	[43] – [49]
Ms BBBB	[50] – [52]
Mrs HHHHH	[53] – [55]
Persons not called to give evidence	[56] – [57]
School records and RISC database	[58] – [69]
Facts	[70] – [211]
Plaintiff’s pre-accident situation	[71] – [81]
Pre-accident events before August 2013	[82] – [141]
Accident circumstances	[142] – [172]
Initial assessment and first aid	[173]
Injuries diagnosed at hospital	[174] – [177]
Pre-accident medical reviews	[178] – [181]
Post-accident medical and allied reviews	[182] – [209]
Disabilities that remain	[210]
Mitigation	[211]
Issue 1 – Pre-accident climbing incidents	[212] – [234]
28 November 2011 to 30 July 2013	[216] – [218]
Events after 30 July 2013	[219] – [234]
Issue 2 – Negligence	[235] – [371]
Risk of harm	[238] – [245]
Duty of care, scope and content	[246] – [247]
Legislation	[248] – [250]
Consideration: s 5B(1) of CL Act	[251] – [321]
Consideration: s 5B(2) of CL Act	[322] – [349]
Consideration: s 5C of CL Act	[350] – [362]
Conclusion on negligence	[363] – [365]
Issue 3 – Causation	[366] – [371]
Issue 4 – Claimed statutory defences	[373] – [382]
Issue 5 – Assessment of damages	[383] – [425]
Actuarial factors	[384]
Non-economic loss	[385] – [397]
Future loss of earning capacity	[398] – [415]
Future paid domestic assistance	[416] – [420]
Future treatment	[421] – [424]
Past out-of-pocket expenses	[425]
Summary of damages assessment	[426]
Disposition	[427]
Costs	[428]
Orders	[429]

Nature of case

1. The plaintiff, who is now aged 15 years, brings this claim by her mother as tutor, seeking damages for alleged negligence causing personal injury when, on Thursday 22 August 2013, as an 11 year old Year 6 school pupil at XXXXX X Public School, she fell 6 metres from the roof of a school building, and sustained orthopaedic injuries to both feet.

2. The claim is brought against the defendant, the State of New South Wales, in respect of its vicarious liability for any acts, neglects or defaults on behalf of the staff of the XXXXX X Public School: s 5 of the Crown Proceedings Act 1988; s 8 of the Law Reform (Vicarious Liability) Act 1983. The defendant denies any negligence, either as alleged, or at all, in relation to the plaintiff’s fall. The proceedings are governed by the provisions of the Civil Liability Act 2002 (“CL Act”), and the defendant relies upon pleaded statutory defences pursuant to that Act.

Non-publication order

3. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (“Suppression Act”), I have made an order prohibiting the publication or other disclosure of information from within the court file and evidence of this case, which would reveal, or tend to reveal, the identity of the plaintiff, or members of her immediate family.

Reasons for non-publication order

4. In examining the evidence in this case it became necessary to refer to evidence of instances of sexual assault involving the plaintiff, a minor. Section 6 of the Suppression Act requires a court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. On a consideration of the evidence, and having due regard to the requirements of s 8(1)(c), (d) and (e) of the Suppression Act, in my opinion, in this case, it is necessary in the public interest for the above non-publication order to be made. This is because the identified public interest in open justice is significantly outweighed by the need to protect the safety of the plaintiff.

5. I consider this to be so, especially having regard to the potentially damaging, unduly distressing or embarrassing effect that the disclosure of such matters may have upon the plaintiff, and upon her mother, as her tutor, both of whom are in effect, parties to the proceedings.

6. The above order was made on 28 April 2017 after notice was given to the parties to consider if they wished to make submissions on whether or not such an order should be made. Accordingly, on being satisfied the order should be made, for the purpose of the publication of these reasons, I have assigned to the plaintiff the litigation pseudonym “Gem”.

Brief factual background

7. At about 11.30am on Thursday, 22 August 2013, the plaintiff fell from the roof of a school building at the XXXXX X Public School whilst she was in the care, and under the one-on-one supervision of a member of the school’s teaching staff within the Support Unit at that school. That unit catered for the education of children with special needs, which included the plaintiff.

8. On a number of previous occasions, including in response to uncertain stressful behavioural triggers, the plaintiff had shown a propensity for climbing to a height on structures at the school, including not only attempting to climb onto the roof, but also actually climbing onto the roof. That propensity related to the plaintiff’s underlying condition of autism spectrum disorder, anxiety, and her related difficulty in regulating her emotional responses to stressful triggers.

9. As a consequence of those matters, the plaintiff was considered by the school to be a pupil who required a high level of personal one-on-one supervision by an adult at all times whilst on the school premises. The plaintiff was not the only child in the Support Unit who had a known propensity to climb.

10. On the day in question, during her lunch break, the plaintiff was taken to an isolation area in a classroom in order that she remain under the supervision of a teacher because her behaviour was escalating. The aim was to place the plaintiff in a secure “time out” area or room inside the classroom: T179.43. In those events, before the plaintiff was taken to the secure room (T178.20 – T178.25), and whilst the plaintiff was in an agitated state, she suddenly absconded from, and ran past that supervising teacher, and ran through a doorway, and then out onto an adjacent balcony. There, she quickly accessed and climbed a wire mesh structure, by which means she then gained access to the roof, from where she later fell, and in the process, fractured the calcaneal bones of both feet, and sustained some lacerations and soft tissue injuries.

11. There was some conflict in the evidence as to whether the door through which the plaintiff had absconded was open at that time, or whether it was simply closed, but had been left unlocked and opened by the plaintiff when she absconded.

12. The copy photograph reproduced below shows some railings, a wire mesh structure, the veranda, and an open gap located above that mesh, in the general area where the plaintiff gained access to the roof:

[Exhibit “2”, first page behind Tab 2]

13. The copy photograph reproduced below shows the same general area evident in the above photograph, but after some structural changes had been made following the plaintiff’s fall, where those changes were intended as precautions aimed at eliminating accessible climbing points:

[Exhibit “2”, photo 5 at Tab 1]

Issues

14. An examination of the pleadings, the evidence and the submissions of the parties indicates that the key issues calling for decision may be conveniently identified as follows:

Issue 1 -   The resolution of factual issues concerning the number of occasions prior to 22 August 2013, on which the plaintiff had either climbed onto the roof of school buildings, or had attempted to do so, to the knowledge of those responsible for student safety at the school;

Issue 2 - The identification of the duty of care that the school owed to the plaintiff, and whether, according to the risk of harm and the consideration required by Pt 1A of the CL Act, there was a relevant breach of the duty of care owed, thereby justifying a finding that the school had been negligent;

Issue 3 -   Whether the plaintiff can establish that her injuries were relevantly caused by the claimed negligence;

Issue 4 - Whether the defences pleaded pursuant to s 32 and s 42 of the CL Act are sustained;

Issue 5 -   The amount of the plaintiff’s entitlement to damages, including having regard to the effect, if any, of a relevant supervening illness suffered by the plaintiff in 2014.

Evidence overview

15. The plaintiff’s mother, was the only witness who was called to give oral evidence in the plaintiff’s case. In the defendant’s case, oral evidence was called from Mr XXXXX  CCCCCC, the Principal of the school, Mrs XXXXX X BBBB, the Deputy Principal of the school, Mrs XXXX HHHHH, a class teacher and an Assistant Principal in the Support Unit at the school, who had immediate responsibility for supervising the plaintiff at the time of the incident, and from Ms XXXXX  SSSSSSSSSS, a Support Unit teacher at the school, who had been the plaintiff’s class teacher in the preceding year.

16. The plaintiff’s class teacher in 2013, Ms XXXXX XX RRRRR, and the School Counsellors, Ms XXXXX XX IIIIIII and Ms XXXXX XX EEEEE, each of whom had knowledge of relevant historical circumstances, were not called as witnesses in the defendant’s case. The parties tendered a number of documents and evidence bundles which will be referred to in these reasons where it becomes relevant to do so.

Credibility and reliability of testimony

17. In the paragraphs that follow, before stating my findings of fact, I set out my conclusions on matters concerning the credibility and the reliability of testimony given by the respective witnesses. I consider that some of the recollections of those witnesses, as recounted in evidence, were shown to be unreliable in various respects. My reasons for such views are identified in the paragraphs that follow, and also in the relevant contexts that arise in the required consideration of the issues.

Plaintiff’s mother

18. The plaintiff’s mother presently works full-time as an XXXXX XXXXX X Family Support Worker. She had previously been employed as a learning support officer, or teacher’s aide, at the XXXXX X Public School. I formed the impression that she gave credible and reliable evidence. Whilst she was at times clearly upset and distressed when relating aspects of her evidence, I nevertheless considered that she gave her evidence in a measured and restrained manner, and without embellishment.

19. The significant matter of dispute arising from the evidence of the plaintiff’s mother, when compared to some of the evidence given by the teachers called in the defendant’s case, and on an evaluation of the documentary evidence comprising the school records which were tendered, was on how many occasions, or on which dates, the plaintiff had been seen to have climbed up onto the roof of a school structure before her injury on 22 August 2013, and whether, on 21 August 2013, the Principal of the school was on the roof of the school library, trying to coax the plaintiff to get down from the roof, as described by the plaintiff’s mother: T34.21 – T35.40.

20. Whilst the factual dispute over whether the Principal was on the roof on 21 August 2013 must be reconciled, including whether the plaintiff was also on the roof at the school on either 20 or 21 August 2013, or on both of those dates, this in my view is not necessarily pivotal to the outcome of the proceedings. There is no dispute that, to the knowledge of those responsible for student safety, the plaintiff had previously managed to climb up onto the roof of the school on at least one other occasion before her fall, and therefore, any such prior event engaged the duty of care owed by the school. Nevertheless, it is important that the conflicting evidence concerning such matters is reconciled insofar as this is possible.

Plaintiff’s pre-injury history

21. The plaintiff did not give evidence. In the presence of the representatives of the parties, her parents, and my Associate, I was introduced to her in an informal manner in the foyer outside the courtroom, absent any members of the public, in order to gain an impression of her. She was obviously well groomed and cared for, she appeared to be very shy, and she did not make any attempt at verbal communication: T102.14 – T102.25.

22. Whilst the descriptions of the plaintiff and her historical problems largely came from her mother’s evidence, from contemporaneous records, and from within the medical histories provided by the plaintiff’s mother, in this case it is reasonable to assume that the plaintiff’s mother had personal knowledge of those relevant matters as they affected the plaintiff, and since I considered the plaintiff’s mother’s evidence was reliable, the descriptions outlined in the paragraphs that follow, are considered to be probative: Daw v Toyworld(NSW) Pty Ltd [2001] NSWCA 25; s 60 of the Evidence Act 1995.

23. The plaintiff was aged 15 years at the time of the hearing. At the age of 4 years, she had been diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD), and since the age of 8 years she had been experiencing absence seizures, but without associated falls: T23.40; T48.2. Before the subject accident, the plaintiff was an active child, but physically, she was not well co-ordinated: T46.4. Nevertheless, she played soccer at the age of 5, but this was discontinued because it was felt that the boys in the soccer team played too roughly: T46.46 – T47.8. She swam, and she still does so, regularly: T48.40.

24. The plaintiff commenced her education at XXXXX X Public School in the Kindergarten class of the Support Unit of that School in January 2007: T23.44 – T23.50; T58.2. In 2008, she then moved into first class, and in 2009, into second class, still in the Support Unit: T58.6. In 2010 and 2011, the Support Unit underwent some significant building works which involved structural changes. In 2012, the plaintiff was in Year 5 at the school. In 2013, the year of her accident, the plaintiff was in Year 6 at the school.

25. Before the subject injury, the plaintiff’s functioning in her parents’ home included carrying out tasks involved in looking after her own room, and attending to some household chores in a normal fashion: T26.10 – T26.23. Until mid-2013, the plaintiff had travelled to school by taxi. However, that arrangement underwent a change in 2013 because of some emergent behavioural issues that arose during transportation. Such issues resulted in the plaintiff being struck on the arm by a taxi driver whilst she was on a journey to school. Thereafter, the plaintiff’s mother started taking her to school, generally delivering her there at, if not slightly before, 09:05 hours. Usually the plaintiff was taken straight into her classroom in the Support Unit, where she would then remain under the adult supervision of a member of the school staff.

26. The plaintiff was described by her mother as quite an active child: T27.35. The plaintiff had been involved in some climbing incidents at the school before the subject accident. The plaintiff’s behavioural tendency to climb to heights at school had escalated in the days before her fall. On 16 August 2013, she climbed a brick dividing wall, and she later attempted to climb onto the roof of a walkway. Other relevant climbing incidents occurred on 20 August 2013, and another which was alleged to have occurred on 21 August 2013, which was the day before the subject accident on 22 August 2013: T65.3 – T65.6. Other evidence indicated the plaintiff’s climbing activities occurred when she was agitated or stressed by random triggering events, which then resulted in such behaviour.

27. The plaintiff had a number of behavioural issues that became manifest when she was at the school. Essentially, at times the plaintiff exhibited challenging behavioural reactions to situations. This involved some instances of sexualised behaviour in the school (T25.24) and instances of variously climbing up onto heights in the school, including onto a high cupboard, a brick dividing wall, railings, mesh walls, and up onto the roof. The precise or particular situational triggers for such behaviours were not explored in detail in the evidence.

21. That said, there is no dispute that in the lead-up to the events in question, by a letter dated 1 August 2013, the plaintiff’s treating paediatrician had made the school authorities aware, through that correspondence, which was addressed to the School Counsellor, of the fact that the plaintiff was known to be reportedly wary of males, and as a result, she exhibited significant high levels of anxiety to males, which impacted on her behaviour, for which she was being medically treated on an ongoing basis including at the time of her fall: Exhibit “B”, Tab 7, pp 150 – 152.

22. Unfortunately, the plaintiff’s history included two described instances in which she had been sexually assaulted.

23. The first such sexual assault occurred in her home, at the age of 8 years, when another child of the same age, whom the plaintiff’s parents had taken into their home to provide foster care, had sexually abused her. On becoming aware of that assault, the plaintiff’s parents immediately arranged for the offending boy to be removed from their house on the same day, in the interests of the safety for all concerned: T25.26 – T25.42.

24. The second such sexual assault, which occurred at the XXXXX X Public School, was perpetrated by a boy in the plaintiff’s class. Although in her oral evidence, the plaintiff’s mother could not identify the date or the year that this occurred as she was exhibiting significant signs of stress at the time she was asked questions about that matter (T25.45 – T26.3), other evidence suggests that this event occurred at least some months prior to the plaintiff’s accident on 22 August 2013. The plaintiff’s mother attributed a significant and deleterious change in the plaintiff’s behaviour, and difficulty in controlling that behaviour, to the consequences of the sexual assault at school. That sexual assault, and that attribution, did not feature in any of the documentation produced by the school.

25. Although the fact of the sexual assault whilst at school came to the attention of a teacher, or teachers, or school staff, no documentary school record of that assault, or the investigation of it, was tendered. The reported response of the school to that sexual assault was to first, call the police, but apparently, no formal action was taken in the form of charges due to the consideration of the age of the perpetrator, and secondly, the perpetrator was moved to another class in the Support Unit. It appears that boy thereafter continued to remain as a student in the Support Unit.

26. It appears that following those events, the plaintiff exhibited significant anxiety when being taken to school, and behavioural issues were noted to have emerged to a point where she became difficult to control at school, a problem that did not exist in her home. The timing of the marked changes in the plaintiff’s behaviour in the lead up to her accident is identified in the plaintiff’s school records, and in her medical records.

27. A question was raised as to whether before the accident, the plaintiff had engaged in climbing activity at home. The plaintiff’s mother denied that this was so (T65.8 – T65.12), and said that she could not recall having a conversation with Dr AAAAAAA in which she had reported to her that the plaintiff had been climbing onto the roof at home in the few months before the accident: T65.20. That question arose because in a letter dated 5 September 2013, Dr AAAAAAA referred to the plaintiff’s mother having described the plaintiff as generally climbing on the roof at home about once a month, that when she climbed on things, she usually had been stopped but in the week before the accident she had been doing more climbing on things: Exhibit “B”, Tab 7, p 308.

28. In my view it is not relevant to resolve or reconcile this reported history with the oral evidence of the plaintiff’s mother because it is at best peripheral to the issues calling for decision, especially as Dr AAAAAAA was not called or required to be called to clarify that matter, and the question had no relevance to the issue of the scope and content of the duty of care owed by the school, or whether there had been a breach of that duty of care, or whether such breach was the relevant cause of the plaintiff’s injuries.

29. The subject incident which resulted in injury to the plaintiff in the fall on 22 August 2013 occurred when the plaintiff was about 2.5 weeks into trialling some anxiolytic medication that had been prescribed for her. At that time, it was expected that such medication would take some further weeks to have a therapeutic effect. In the meantime, she continued to remain subject to randomly occurring situational emotional triggers, including being near males, and it seems that such experiences were at least in part instrumental in provoking her described challenging behaviours whilst at school. The question of what was causing or contributing to the plaintiff’s anxiety at the school was not explored in detail at the hearing.

30. On 1 November 2013, after the plaintiff’s fall, and in the course of the plaintiff undergoing post-injury psychological therapy, it transpired that prior to her injury on 22 August 2013, the plaintiff had developed a fear of school, and of the people there, because of the sexual assault upon her by a boy in her class, and that fear had developed into a situation where the plaintiff was terrified of going to school: Exhibit “B”, Tab 10, p 329.

31. The School Counsellor at that time, Ms XXX IIIIIII, had been made aware that the plaintiff was wary of males, some 3 weeks before that fall, by a letter from the plaintiff’s paediatrician, Dr AAAAAAA, dated 1 August 2013. Since Ms IIIIIII was not called as a witness, the information identified in that exhibit was not further explored in the evidence. However, counsel for the plaintiff made the submission that the school, by at least that time, was armed with all the necessary information about the plaintiff that would be expected to have been given to a parent on that subject, in the interest of the welfare, safety and wellbeing of the plaintiff.

32. Ms SSSSSSSSSS, who as the plaintiff’s teacher, knew her well, agreed with the aptness of the following description that appeared in some school records from the next school the plaintiff attended: “(Gem) is a very energetic and curious young girl who has an affectionate and loving personality, (Gem) is a very helpful young girl who is always eager to please and do what it (sic) is right. (Gem) loves to talk and has a tendency to want to organise everyone. Some of (Gem)’s favourite things are: The colour Blue; Swimming (Loves the Water); Loves Scooby Doo; Playing her DS game; Watching movies; Painting and colouring; Playing with her Lego and dolls; making thing (sic). (Gem) also enjoys reading and spending time with her family. (Gem) likes the feel of certain things such as silk, wool or anything that is smooth and soft to touch, she also likes things that are cool to touch such as ice and cooled water etc. (Gem) is our little diamond in the rough, She (sic) maybe (sic) a little rough around the edges but wants (sic) you get to know her she is truly a little diamond and like a diamond (Gem) is sharp, elegant, unique, precious and truly one of a kind.”: Exhibit “2”, Tab 3, p 9.

Ms SSSSSSSSSS

40. Ms SSSSSSSSSS had worked as a primary school teacher in a variety of schools over the course of 20 years. She has worked full time at XXXXX X Public School since 2009, but beforehand, she had also worked in that school as a playground and relief teacher, between about 2003 and 2009: T184. Ms SSSSSSSSSS was familiar with the plaintiff, having been her class teacher in 2012: T184.30 - T187.37. She was obviously very fond of the plaintiff, and she said that there was “plenty to love” about her: T198.9.

41. Ms SSSSSSSSSS gave her evidence hesitantly, and at some points, apprehensively. Although she was visibly stressed by the circumstances of giving evidence, I nevertheless formed the impression that Ms SSSSSSSSSS generally gave her evidence in a straightforward matter-of-fact manner, truthfully, and according to the best of her recollection. There was nothing on the face of her evidence which suggested that it was either not credible or not reliable.

42. That impression gave rise to a need for a comparative evaluation of the aspects of her evidence which differed from particular aspects of the evidence given by other staff members, particularly Mrs HHHHH, and the plaintiff’s mother, on the specific question of whether there had been another climbing incident involving the plaintiff at the school on 21 August 2013, which was the day before the subject accident on 22 August 2013, and the specific circumstances that occurred just before the plaintiff absconded from supervision.

Mr CCCCCC

43. Mr CCCCCC has been the Principal of the XXXXX X Public School since 2010. He did not appear to have a good recollection of a number of matters raised in the questions that were directed at him. His answers to a number of significant questions were met with responses to the effect that he could not recall: T78.41; T95.43; T97.16; T97.19; T97.38; T99.49; T109.30; T109.38; T110.24. I considered aspects of his evidence to have involved a degree of factual vagueness on his part. Mr CCCCCC answered questions on whether he had been present when the plaintiff had been on the roof on previous occasions by saying : “Not that I recall”: T99.49.

44. I considered that Mr CCCCCC’s evidence was at times given in a hesitant and guarded manner. He initially gave an erroneous answer as to the date of the plaintiff’s accident as being 21 and not 22 August 2013, but he corrected this evidence when clarification was sought: T100.20 – T100.39. Reservations arose as to the reliability of his evidence. In my view, for reasons that will be made clear, he gave unsatisfactory evidence as to why a previous roof climbing incident on 21 August 2013 involving the plaintiff had not been entered into the school’s database system. He sought, unreasonably in my view, to attempt to cast doubt over the accuracy of the school’s record which described the plaintiff’s climbing incident on 16 August 2013, and to quibble defensively: T93.38.

45. Mr CCCCCC’s manner of answering questions resulted in counsel for the plaintiff feeling compelled, justifiably in my view, to ask him whether in his answers to questions asked of him in cross-examination, he was being deliberately obtuse: T99.10. My impression was that he appeared to be distracted by the circumstances, and had difficulty concentrating on the issue raised in that particular topic of questioning: T99.11.

46. In my view, Mr CCCCCC parried unreasonably and defensively with the interpretation of the meaning of a plain written description appearing within a document which described one of the plaintiff’s previous climbing episodes that occurred on 16 August 2013, six days before the subject accident: T92.32 – T93.46. He avoided giving a direct and complete answer to a clearly expressed question that related to the defendant’s liability: T93.45 – T93.48. He sought to avoid answering an unambiguous question as to whether he had made a statement about the matters that were the subject of the case, by saying he did not understand the question, a response I found to be incredulous and unconvincing: T94.27. This was in circumstances where, elsewhere in his evidence, he had no difficulty in understanding what was meant by the term statement: T110.16. He was reluctant to make reasonable concessions where they were due, as the following evidence shows:

“Q. You knew, on 20 August 2013, that the plaintiff had taken to climbing on, and running around the roof, of the school buildings, didn't you?

A. No, that was the 20, the day before the incident, I became aware of that.

HIS HONOUR

Q. I think what Ms Welsh is asking you about is whether you knew that the plaintiff had, before 20 August, on at least one occasion, if not more, climbed up and run around on the roof?

A. No. I was not aware.

Q. On that subject, I'm just trying to clarify again what these documents mean. If you go to the document with the number 34 at the bottom, which Ms Welsh has given you, under "Contact description" there, you'll see "Moved to veranda, stripped and climbed mesh, and attempted to get through the gap, got stuck". My interpretation of those words is that on 20 August, the plaintiff was unsuccessful in getting onto the roof. Is that a correct interpretation?

A. That's correct.

Q. Then when one goes to the document at page 77 of the folder that you've got, which is also dated 20 August 2013, the point we discussed earlier, being behaviour triggers, do you have that in front of you?

A. Yes.

Q. I'm the last person to pick on other people's syntax, but I'm just trying to understand what this means. "Perceived anxiety on arrival at school triggers (Gem) to climb onto roof". Ignoring the last part, "triggers" to me implies a process rather than an event, in other words, more than one occasion. Would that be your understanding of the meaning of this document?

A. Yes.

Q. Which means that before 20 August 2013, there were prior occasions on which (Gem) had successfully climbed onto the roof?

A. If you take the meaning of those words there.

Q. Would you, on considering the interchange we've just had, consider that there should be an alternative interpretation than the one I've just raised?

A. No, your Honour, not according to that document, reading that document.”

[T95.45 – T96.32]

[Emphasis added and plaintiff’s name edited]

47. Mr CCCCCC described the school’s system for the reporting of significant incidents by way of an entry in a database system operated within the school, which provided a means of recording or minuting significant events that might involve risk, and where significant entries were expected to be made by the staff member on duty who was a student’s immediate supervisor. He stated that in this way reports would come to his attention: T88.30 – T88.43. The system was known by the term RISC, an acronym for registered individual student contact: T206.5.

48. In light of that system, and in light of the content of the matters tendered in evidence from within that system, it was difficult to understand why Mr CCCCCC said he had not been informed of, or had not become aware of, any instances other than the incident of 21 August 2013, in which the plaintiff had previously climbed onto the roof of the school: T80.37 – T80.39; T81.15. If Mr CCCCCC's evidence is to be accepted on the question of whether or not he was informed of other instances of the plaintiff climbing onto the roof, this gives rise to other questions, such as whether those supervising the plaintiff at relevant times when incidents had occurred, had made appropriate entries in the system, or whether Mr CCCCCC either read or reviewed those matters.

49. For the reasons outlined above, I found Mr CCCCCC to be an unsatisfactory witness in a number of respects, which in my view, indicated that his evidence on key matters of contention should be viewed with considerable caution because of concerns over its reliability.

Ms BBBB

50. Ms BBBB is the Deputy Principal of XXXXX X Public School. She was also in that role in August 2013. Her role entailed the daily organisation of the school, including rostering and interacting with the Support Unit and with the 5 Assistant Principals at the school in order to address various issues and matters requiring attention, as and when they came to light: T199.

51. Ms BBBB’s evidence was that, apart from the incident on 22 August 2013, and an earlier incident that she described as having occurred on either 19 or 20 August 2013, both of which had involved the plaintiff being on the roof of the Support Unit, she was not aware of any other prior incident of the plaintiff being on the roof of the school: T200.40; T201.30; T202.46; T205.48. She said she was not aware of the specific incident which involved the plaintiff on 16 August 2013: T205.29 – T205.32. That evidence raised a question of the adequacy of the school’s system for the transmission of relevant and important information within the school to staff members on matters of student safety.

52. In my assessment, Ms BBBB was defensive in her evidence. In the course of her evidence-in-chief, in relation to the incident on 22 August 2013, she expressed a reluctance to say the plaintiff had fallen from the roof (T200.20), whereas during cross-examination, when her evidence in that regard was revisited, she conceded that she knew, and had no doubt, that the plaintiff had fallen from the roof: T205.20 – T205.27. I took her initial answer in that regard to be guarded, unduly defensive, not open, and not straightforward. She appeared to be a reluctant witness.

Mrs HHHHH

53. Mrs HHHHH is the Assistant Support Principal at the school. She was in that position at the time of the events in question, and it was her third year in that role: T163.38. She was aware of the plaintiff’s climbing propensity, having seen that behaviour by the plaintiff in the previous Support Unit before it was replaced in 2010: T188.14 – T188.16. In addition to being a class teacher, her role was to supervise staff in their programming and in their class management. She confirmed that in 2013, the plaintiff’s class teacher was Ms XXXXX XX RRRRR: T113.34. Mrs HHHHH was the teacher responsible for the immediate supervision of the plaintiff at the time that she absconded and climbed onto the roof of the school. Those events require close examination in the course of these reasons.

54. There was a material divergence between the factual recollections within the evidence of Mrs HHHHH and Ms SSSSSSSSSS on the sequence of events that occurred immediately before the plaintiff was injured, including involving the plaintiff leaving the area where Mrs HHHHH had been supervising her. There was also a divergence between the evidence of Mrs HHHHH, Ms BBBB and Mr CCCCCC on the earlier events of 21 August 2013. These are matters that require resolution.

55. My impression of the evidence of Mrs HHHHH was that she was guarded in her answers. I had reservations about accepting her evidence in its entirety on key matters in dispute, for reasons that will be identified in the relevant contexts that arise in the evaluation of the evidence on specific matters of fact.

Persons not called to give evidence

56. Ms XXXXX XX RRRRR, was the plaintiff’s class teacher in the current school year when the accident occurred. Ms XXXXX X IIIIIII was a School Counsellor as at 1 August 2013. Ms XXXXX X EEEEE was a School Counsellor as at 20 August 2013. The defendant did not call any of those persons as witnesses in the proceedings. Absent other evidence of their unavailability, it must be presumed that, if required, they would have been available to be called to give evidence: Evidence Act 1995, Dictionary cl 4(2).

57. The decision on whether or not to call those persons as witnesses was one for the defendant to make. On behalf of the plaintiff, it was submitted that as a consequence of Ms RRRRR not being called as a witness, it should be inferred that if called, she would not have assisted the defendant’s case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. I accept that submission. In my view, for reasons that will be made plain, the same conclusion applies to the fact that neither Ms IIIIIII nor Ms EEEEE were called by the defendant to give evidence. Their evidence could have thrown light upon the school’s consideration and responses to the plaintiff’s escalating and climbing behaviours. The absence of evidence from these witnesses remains unexplained in the circumstances where it would have been natural for the defendant to have called them on those relevant matters of background given that the school was in loco parentis: RHG Mortgage Ltd v Ianni [2015] NSWCA 56, at [75] – [78].

School records and RISC database

58. At this point, it is convenient to identify and describe some factual matters arising from the tendered documents from the XXXXX X Public School database recordkeeping system, RISC, which in part appears to have consisted of a template containing entries of relevant reported events, occurrences, or conversations that related to individual pupils: T88.27. Some of those records were extracted, copied and tendered by the defendant as part of the material appearing behind Tab 3 of Exhibit “2”. Some of them also appeared in the plaintiff’s tendered material in Exhibit “A”.

58. The impression I gained from Mr CCCCCC’s evidence was that the described database was not always the subject of relevant entries on matters of safety when such incidents occurred. As the name implied, the system only contained details of events that had been registered. It was generally assumed that entries were made in the system in order to minute a relevant conversation or a reported event that involved questions of risk to students whilst at school: T88.34. However, whether or not a particular entry or registration was made in the database depended upon whether or not an individual member of the teaching staff (being a teacher’s aide, or other staff, including office staff) would make a report to the teacher responsible for supervision at the time, who was in turn expected to make a relevant entry or registration in the database: T88.38 – T88.44.

59. It is apparent that this system of recording events had the potential for departures to occur from the above stated expectations: Elayoubi v Zipser [2008] NSWCA 335, at [86]. For example, Mr CCCCCC agreed that in the ordinary course of events, he would have expected that an item of history such as the one where the plaintiff was seen to have climbed onto the roof on the day before the subject accident, would have been a matter to be recorded in the database: T89.3 – T89.7.

60. In that context, Ms SSSSSSSSSS identified a roof climbing incident involving the plaintiff, which she witnessed on 21 August 2013, which was the day before the subject accident (T193.45 – T194.15; T194.33), and Mr CCCCCC stated that on his searches, there was no matching database entry for such an event: T88.48 – T88.50. This suggests the database was not an up to date or a complete and reliable record of risk-related events involving student safety at the school, particularly as it concerned matters relating to the plaintiff. Mr CCCCCC’s explanation for the absence of any system entry or record for the plaintiff’s 21 August 2013 climbing incident was in my view unpersuasive and unsatisfactory, for reasons that will be made clear.

61. In seeking to reconcile those respective positions, relevantly, when Ms SSSSSSSSSS was asked why she had not filled out a report about the events of the 21 August 2013 incident, she stated that she had not been asked to do so: T191.1 – T191.10. That position may be explained in light of Mr CCCCCC’s evidence that in the school hierarchy, the responsibility for making such a record was that of the plaintiff’s immediate supervising teacher: T88.40 – T88.44. In that instance, the teacher who was the immediate supervisor of the plaintiff at the time of injury was Mrs HHHHH, although Ms SSSSSSSSSS was present nearby.

62. An alternative view could be that although not present at the time of the incident, Ms RRRRR was the plaintiff’s teacher, and as such she should have filled out a report. There is no report from her in that regard, which raises a question as to why that was so. A possible answer to that question is that Ms SSSSSSSSSS said she had spoken to Mrs HHHHH about that incident in her capacity as Assistant Principal (T191.10) with the implied expectation that Mrs HHHHH would fill out a report.

63. This also raises a question of why Ms RRRRR, who was the plaintiff’s class teacher, did not fill out a form or a report relating to a climbing incident involving the plaintiff on 21 August 2013.

64. It is noteworthy that the extracted materials that were tendered comprised school records which noted a number of significant behavioural incidents, occurrences, or events of a verbal or violent nature, which occurred at the school, and which would ordinarily be expected to have disciplinary implications, as well as some incidents which were considered to be of a welfare nature, and others which involved safety issues relating to the plaintiff whilst at the school.

65. Within that array of documents there were some references to a number of incidents that are relevant to the liability consideration required in this case. The degree of completeness of those records was obviously dependent upon the extent of the input of factual information in any registration of data, which was in turn dependent upon the discretion, any decision, the judgment, and the degree of application, of the persons responsible for making such entries in the school’s record keeping database system.

66. On reviewing the defendant’s bundle comprising Exhibit “2”, in comparison with the plaintiff’s bundle comprising Exhibit “A”, which comprised documents released pursuant to Government Information (Public Access) Act 2009, it became apparent the defendant’s bundle did not constitute a complete historical documentary record of events concerning the plaintiff at the school.

67. On considering the content of the evidence of Mr CCCCCC, Mrs HHHHH, Ms BBBB and Ms SSSSSSSSSS, I have concluded that the school’s student database system or RISC did not comprise a complete or comprehensive record or registration of relevant behavioural events at the school that had safety implications for the plaintiff whilst she was at the school. I have come to that conclusion because some relevant behaviour management plans and other relevant documents, such as suspension notes, were not tendered, and because no entry was made of the climbing incident that was described as occurring on 21 August 2013, as explained in the cited evidence of Mr CCCCCC.

68. I am reinforced in that conclusion because the defendant’s tendered documents within Exhibit “2” appeared to be “a school file”, which was acknowledged by Ms SSSSSSSSSS (T197.21), and that material did not contain some of the documents that would ordinarily have been expected to be contained in such a school file, some of which were separately tendered by the plaintiff: Exhibit “A”. The chronological analysis of relevant pre-accident incidents, actions and information that will shortly follow, draws upon both of those sources of documentary evidence.

Facts

70. Unless otherwise stated or qualified, my findings of fact are as follows.

Plaintiff’s pre-accident situation

71. The plaintiff had a complex health and behavioural history. Dr XXXXX X AAAAAAA has been the plaintiff’s treating specialist paediatrician since the plaintiff was aged 18 months: T43.29. A useful starting point for considering the background and the context of the plaintiff’s behavioural issues is the 4 November 2010 letter from Dr AAAAAAA to the plaintiff’s family doctor. That letter records a history of “a very complex young lady” whose behaviour “had significantly deteriorated in recent weeks” and which was “quite out of character for her”: Exhibit “2”, Tab 3, p 81.

72. Dr AAAAAAA identified a diagnosis of reactive attachment disorder and a stable history of absence seizures. She also identified “some traumas earlier in the year”, and she initiated some testing in the form of a recently available micro assay chromosomal test and metabolic screening: Exhibit “2”, Tab 3, pp 81 – 82. Subsequently, this reportedly revealed a Chromosome 7 deletion abnormality, which apparently had an influence on the plaintiff’s behaviour.

73. In 2013, the plaintiff was on a number of medications, some of which were, in the lead-up to the events in question, aimed at controlling her anxiety and related behaviours.

74. The previous traumas referred to by Dr AAAAAAA in her letter of 4 November 2010 were not specifically identified in the context of her cited letter. There was other evidence that the plaintiff had been sexually assaulted on two separate occasions as referred to at paragraphs [29] – [32] above, however those events appeared to have occurred after 4 November 2010.

75. On 3 March 2011, the Relieving Assistant Principal of XXXXX X Public School, Mr XXXX YYYYY, who was still a teacher on the staff of the school on 22 August 2013, convened a Return from Suspension meeting with the plaintiff’s mother, relating to the plaintiff. That suspension was not the subject of an entry in any document tendered by the defendant relating to the school’s individual student database. The suspension was for a period of 4 days between 28 February 2011 and 3 March 2011. That suspension was mentioned in Mr YYYYY’s letter dated 3 March 2011 to Dr AAAAAAA.

76. It appears that Mr YYYYY’s letter to Dr AAAAAAA had a twofold purpose. The first such purpose was to inform Dr AAAAAAA that, coincidental with a reduction in the plaintiff’s medication dosages for controlling behavioural issues, school staff had noticed dramatic changes in the plaintiff’s ability to cope with her emotions and her daily routine at school. The second such purpose was to seek Dr AAAAAAA ’s advice on possible ways that the school might be able to assist the plaintiff: Exhibit “2”, Tab 3, pp 79 – 80.

77. Mr YYYYY’s letter recounted that there had been acts of physical violence carried out by the plaintiff upon staff and other students, and of the plaintiff running away from staff, and fluctuations in the plaintiff’s behaviour, ranging from calm moments, and then rapid escalations, followed by calm periods again. He also cited several periods of leave from school where the plaintiff’s mother had been called to take the plaintiff home. In that context, it would be difficult to envisage why, other than for reasons of safety at school, a student exhibiting such behaviours would be suspended. Those described circumstances were in the context of changes that had been made to the plaintiff’s medications.

78. In Mr YYYYY’s letter to Dr AAAAAAA, he noted the plaintiff’s Behaviour Management Plan had been updated, and that new strategies were being trialled on the plaintiff’s return to school. Any incident reports, or individual student contact reports arising from those described incidents, the updated Behaviour Management Plan referred to, and its predecessor, were not included in the defendant’s tender bundle comprising Exhibit “2”. The description of those incidents, those Behavioural Management Plans, and their absence from the evidence, also confirms that the entirety of the school’s behavioural records relating to the plaintiff had not been copied into the bundles that were tendered.

79. On 10 September 2012, the plaintiff’s Year 5 teacher, Ms SSSSSSSSSS, in consultation with the Principal, Mr CCCCCC, prepared a Risk Management Plan in relation to the plaintiff whilst at school, and that plan was communicated to the plaintiff’s parents, and to school staff: Exhibit “2”, Tab 3, pp 52 – 53. That document serves as a useful baseline for the consideration of the liability issues.

80. That 10 September 2012 plan identified a range of “unmanageable” risk behaviours that could be a source of injury to the plaintiff herself, to other students, and to staff. The plan also recorded that the behaviours included opening the door of a moving vehicle whilst the plaintiff was being transported; behaving in a manner that could distract the driver of the transport vehicle so as to risk causing an accident; frequently moving from her designated seat; hitting, kicking and spitting at other students, and at staff.

81. In that risk management plan, the documented triggers for the plaintiff’s described behaviours at that time were noted to include late intake of medication, thus delaying its therapeutic effect, and the plaintiff being unsettled before being placed in a taxi for transport to school, and possible sugar sensitivity. It was therefore plain, as at September 2012, based on that assessment, and the earlier described events that from the school’s perspective, the plaintiff presented to the school with a high need for supervision, at least from 2012, and thereafter.

Pre-accident events before August 2013

82. Before making findings on whether or not the undocumented incident of 21 August 2013 occurred as was claimed on behalf of the plaintiff, it is convenient to first survey the relevant antecedent historical incidents that are documented in school records.

83. Exhibit “A” and Exhibit “2”, at Tab 3, each contains a number of dated documents, reports and emails that were created and systemically filed by the school in relation to the plaintiff, and in relation to various historical incidents which had involved the plaintiff.

84. In the paragraphs that follow, some 30 documents, or instances, or events that are described within Exhibit “A” and Exhibit “2”, and that are significant to the consideration in this case, are identified as a precursor to a consideration of the variously conceded and the variously disputed incidents, irrespective of whether they have been made the subject of a school RISC or other record tendered in evidence.

(1) Incident on 17 February 2011

85. On 17 February 2011, a teacher, Ms OOOOOO, wrote up a RISC contact entry in the plaintiff’s student record, noting the incident type involved violence, with several time out periods having occurred during the day. A discussion with the plaintiff’s mother revealed that these issues may have arisen due to the plaintiff having received food containing sugar: Exhibit “A”, p 7.

(2) Incident on 22 February 2011

86. On 22 February 2011, Ms OOOOOO wrote up a RISC contact entry in the plaintiff’s student record concerning the plaintiff’s escalating and unsettled behaviour, noting the incident type involved violence. The parents were called and came to take her home, apparently at the request of the school: Exhibit “A”, p 6.

(3) Incident on 24 February 2011

87. On 24 February 2011, Ms OOOOOO wrote up a RISC contact entry in the plaintiff’s student record concerning the plaintiff’s disruptive behaviour, noting the incident type involved violence. A decision was made to suspend the plaintiff from school for 4 days, with an updated behaviour plan envisaged to follow: Exhibit “A”, p 6.

(4) Incident on 28 February 2011

88. On 28 February 2011, Ms OOOOOO wrote up an incomplete entry in the plaintiff’s RISC student record to note the plaintiff’s continued disobedience and aggressive behaviour, without other notations. The incident type was noted to have resulted in a short suspension: Exhibit “A”, p 6.

(5) Student Behaviour Management Plan dated 28 February 2011

89. On 28 February 2011, the school prepared a Student Behaviour Management plan relating to the plaintiff: Exhibit “A”, pp 2 – 3. That plan was prepared in the context of a history of undated occasions on which the plaintiff lost emotional control, with associated escalation of aggressive behaviour, including episodes of alternatively escalating, de-escalating then rapidly escalating again. The personal safety issues identified in that plan involved plural rather than singular references to the plaintiff, amongst other things, putting herself in dangerous situations, including by running away, and climbing fences.

90. In that plan, psychological and physical strategies were identified to deal with unacceptable behaviours and to promote discipline and learning. The component of that plan that considered crisis management to ensure personal safety included removal from the classroom, calming, or if those steps failed, to call the family to come and remove the plaintiff from school and to escort her home safely as soon as possible, to avoid injury to students, and staff, and to taxi drivers if the behaviours in question arose during transportation.

(6) File note by School Counsellor dated 2 March 2002 (sic for 2011)

91. On 2 March 2002 (sic for 2011), the School Counsellor, Ms XXX IIIIIII, a registered psychologist, made a file note about an earlier note from the plaintiff’s class teacher expressing concerns about the plaintiff’s recent behaviour, a resultant suspension, and a planned return from suspension meeting scheduled for the next day: Exhibit “A”, p 4. That file note recorded that Ms IIIIIII had spoken to the Principal about checking on the plaintiff’s recent visit to the paediatrician. No details of the behaviour in question were recorded in that note. The 2002 date on this note is clearly erroneous, given the context. In considering the related correspondence, I consider the date stated was an erroneous reference which was intended to be 2 March 2011. It appears from correspondence dated 1 August 2013, that Ms IIIIIII was the School Counsellor for at least 2 years in 2011 – 2013: Exhibit “A”, p 31; Exhibit “2”, Tab 3, p 83.

(7) Letter from Dr AAAAAAA dated 3 March 2011

92. On 3 March 2011, Dr AAAAAAA wrote to the School Counsellor acknowledging the information provided to her by the school to the effect that the plaintiff’s behaviour had changed since her medication had been reduced. Dr AAAAAAA recommended the plaintiff’s needs be met by the provision of extensive help and support from the Behaviour Support Team at ADHC, which is the short form name for the entity Aging Disability & Home Care: Exhibit “A”, p 5.

(8) Meeting between school staff and plaintiff’s mother on 7 August 2012

93. On 7 August 2012, the plaintiff’s mother met with Mr CCCCCC, Mrs HHHHH and Ms NNNNN, the Student Services Consultant: Exhibit “A”, p 12. The purpose of that meeting was to review the plaintiff’s risk assessment. No amendments were identified as being necessary to modify the current plan.

(9) Student Behaviour Management Plan dated 21 August 2012

94. On 21 August 2012, a Grade 5 Student Behaviour Management Plan was prepared relating to the plaintiff. It was identified as being Risk Assessment 4, which appeared to be a reference to a category of risk, about which there was no descriptive evidence: Exhibit “A”, pp 8 – 9. This was prepared with team involvement comprising the Assistant Principal and Support Unit staff: Exhibit “A”, pp 8 – 9. That Behaviour Management Plan set out in a tabulated form, a number of relevant matters, as follows:

1. At risk behaviours were identified as rapidly escalating aggressive behaviours, resulting in loss of emotional control, an inability to calm down, or continuing for long periods, with alternating escalations, de-escalations, and then rapid re-escalation, impacting on personal safety, at times involving the plaintiff trying to run away, fence climbing, and escalating behaviour whilst travelling home in a taxi;

2. The strategies that were identified in that plan, included providing calming opportunities, described as “NVCI”, or non-violent crisis intervention, to ensure personal safety, and if calmness could not be successfully achieved, the family were to be called to achieve the plaintiff’s removal from school as soon as possible, and if the plaintiff’s behaviour was assessed to be too dangerous for the taxi driver, the plan was for her to be kept at school until a parent could arrive and escort her home.

(10) Risk Management Plan dated 10 September 2012

95. On 10 September 2012, Ms SSSSSSSSSS in consultation with Mr CCCCCC, prepared a Risk Management Plan regarding the plaintiff’s behaviour: Exhibit “A”, pp 10 – 11. The need for that plan arose because of identified risk behaviours relating to the plaintiff damaging her clothing; possible opening of the door of a moving vehicle whilst being transported by taxi; frequently moving from her designated seat in taxis, and non-compliant behaviours. Possible triggers were identified as being late administration of medication and sugary foods. Strategies were identified to address those issues:

(11) Access Request Form dated 19 December 2012

96. On 19 December 2012, an access request was made to the Department of Education and Training for full-time support services to be provided for the plaintiff. That request was endorsed by Mr CCCCCC, as Principal: Exhibit “A”, p 13. The outcome of that request was not the subject of evidence.

(12) Incident on 31 January 2013

97. On 31 January 2013, the plaintiff’s class teacher, Ms RRRRR, filled out an Individual Student Contact form at 15:51 hours, to record a verbal incident in which the plaintiff was using inappropriate language and was not following instructions. The notes recorded that the plaintiff’s mother had mentioned that the plaintiff had not received her morning medication. The action taken was “time out” and “Buddy teacher intervention”: Exhibit “2”, Tab 3, p 70.

(13) Student Behaviour Management Plan dated 6 February 2013

98. On 6 February 2013, a Grade 6 Student Behaviour Management Plan was prepared in relation to the plaintiff, and this was also identified as being Risk Assessment 4: Exhibit “A”, pp 14 – 15. This was in similar terms to the plan made 5 months earlier, on 21 August 2012, as described at paragraph [94] above.

(14) Incident on 22 February 2013

99. On 22 February 2013, a teacher, Ms XXX JJJJJJJJ, filled out an Individual Student Contact form at 15:56 hours, describing a verbal incident in which the plaintiff was using sexually explicit language. The plaintiff was “Sent to executive”, which I interpret to mean the office of the Principal or Assistant Principal. The note suggested that the plaintiff had been spoken to about such comments, but did not stop. Ms JJJJJJJJ therefore escorted the plaintiff to Mrs HHHHH, where she was kept in “time out” for 30 minutes until she calmed down and could return to the classroom without repetition of that behaviour: Exhibit “2”, Tab 3, p 67.

(15) Disability Confirmation Sheet dated 4 June 2013

100. On 4 June 2013, a disability confirmation sheet was completed for Grade 6 in relation to the plaintiff by the School Counsellor, Ms XXXXX X EEEEE, and Mr XXXXX HHHHHH, the District Guidance Officer. The form identified the plaintiff as having an intellectual disability and mental health problems. The form was stated to be valid until 2017: Exhibit “A”, pp 16 – 17.

(16) Incident on 12 June 2013

101. On 12 June 2013, the plaintiff’s teacher, Ms RRRRR, filled out an Individual Student Contact form to record the fact of an incident of violence involving the plaintiff occurred in a classroom, possibly at 10:34 hours on that day. The described event was that the plaintiff came back into the classroom in an agitated state, swearing and yelling, following which she left the room. She was followed by another pupil whom the plaintiff then punched. Following those events, the plaintiff was coaxed back into the classroom by Ms RRRRR, who then placed her in the office for a “time out” session, following which she re-joined the class when she felt calm: Exhibit “2”, Tab 3, p 66.

102. The status of that record is marked as “Incomplete”, and the stated timing of 10:34 hours, appears to be anomalous, because the incident in question was said to have occurred after lunch, which on the evidence, was at about 11:30 hours. That apparent timing anomaly remained unexplained.

(17) Access Request for Further Student Support dated 14 June 2013

103. On 14 June 2013, a form was prepared seeking further support for the plaintiff, noting the existing plan was prepared on 21 August 2012, and was reviewed on 6 February 2013. The context of this request was that of potential risks relating to school based activities and travel management. The document was prepared by Ms RRRRR, in consultation with Mrs HHHHH and the plaintiff’s parents, and the request was supported by Mr CCCCCC on behalf of the school. The description of need annotated by Ms RRRRR included the following description of a safety issue: “Management Strategies are required to keep (Gem) safe. She will climb any type of structure. She has been known to run away and could be at risk if by herself”: Exhibit “A”, pp 18 – 23. These matters clearly had a student safety focus.

(18) Incident on 18 June 2013

104. On 18 June 2013, Mrs HHHHH filled out an Individual Student Contact form to record the fact of an incident of verbal abuse involving the plaintiff being non-compliant, and swearing, when she was being walked out to the taxi which was to transport her home. The time of the form was marked as being 09:00 hours, which appeared to be anomalous, as the impression from the document was that the event in question occurred at the end of the school day at which time the plaintiff was being walked to and not from the taxi, and where schooling had formally commenced at 09:05 hours that morning. A status notation indicated that the form was “Incomplete”, even after it had been further annotated on 23 June 2013, at which time it was suggested that the plaintiff needed to have someone escort her so she could resume her taxi transportation: Exhibit “2”, Tab 3, p 62. These matters clearly had a student safety focus: Exhibit “A”, p 24.

105. On that same date, an untimed RISC Contact Report was prepared by an unnamed staff member recording the effect of an after-school discussion between that staff member and the taxi driver, with concerns about the plaintiff’s aggressive behaviour in the taxi. It was a composite note which also included the effect of a subsequent call from the taxi company to advise that the plaintiff would no longer be able to use the taxi service because of the risk to other students, and to the driver: Exhibit “2”, Tab 3, p 63.

(19) Incident on 19 June 2013

106. On 19 June 2013, Mrs HHHHH filled out an Individual Student Contact form to record the fact of a welfare attendance on that day, in which Mrs HHHHH described having met with the plaintiff’s parents when they brought the plaintiff to school that day. It was noted that at that meeting, they had discussed the fact that the family would transport the plaintiff to school until the process of obtaining approval for a person to escort the plaintiff was completed. At that time, the plaintiff’s mother raised with the school her concern that the plaintiff had been hit on the arm by the taxi driver. The form was timed 09:00 hours, and its status was described as “Incomplete” : Exhibit “A”, p 25; Exhibit “2”, Tab 3, p 61. These matters clearly also had a student safety focus.

(20) Incident on 24 June 2013

107. On 24 June 2013, Ms RRRRR filled out an Individual Student Contact form to record the fact of a verbal incident which occurred on that day involving the plaintiff. The described incident was that the plaintiff had been repeatedly swearing in class, and that she had scribbled on her face with texta. Ms RRRRR stated the plaintiff was then placed on the veranda in a “time out” session, but there, she had kept yelling, swearing, and had also taken off all her clothes and thrown them over the veranda. These events were obviously concerning to the school, if for nothing else, the effect such behaviours might have on other pupils. After the plaintiff was re-dressed, she was placed, sitting out on the veranda, in Mrs HHHHH’ view, with the door open, at which time she ate her lunch. The incident was noted to have occurred at 15:57 hours, which appeared to be an anomalous time entry, as that annotated time was well after the described lunch time, and more likely than not, after school hours. The status notation on the form was “Incomplete” : Exhibit “A”, p 26; Exhibit “2”, Tab 3, p 65.

(21) Placement Panel notification dated 25 June 2013

108. At 14:17 hours on 25 June 2013, the Lismore Student Services Office of the Department of Education & Communities sent a facsimile to the Principal of XXXXX X Public School stating that the departmental district special education placement panel had met and considered an application for the plaintiff to be placed in a support class at that time, and that the panel made recommendations for alternative appropriate support for the plaintiff, and that the plaintiff’s application will remain current and would be considered by the panel should a place become available: Exhibit “A”, p 28. This suggests that an application had been made for the plaintiff to be placed in a support class other than the class in the Support Unit to which she had been enrolled at that time, and that there were vacancies for such a class, which meant the Department of Education would maintain the plaintiff’s current enrolment in the Support Unit.

(22) Incident on 25 June 2013

109. On 25 June 2013, at 15:40 hours, Ms RRRRR filled out an Individual Student Contact form to record an incident described as non-compliance involving the plaintiff. The described incident was that the plaintiff was climbing on rails and refused to come down, and was swearing and yelling at the other children, and at teachers. The action which followed was stated as being that all the Support Unit children were moved inside and off the playground. Ms BBBB was called, the plaintiff got down off the railing, and went with Ms BBBB for some time out. The status notation on the form was “Incomplete”: Exhibit “A”, p 27.

(23) Behaviour Management Plan dated 20 July 2013

110. On 20 July 2013, a Grade 6 Student Behaviour Management Plan was prepared relating to the plaintiff. It was described as being Risk Assessment 5. This appeared to be a different risk classification to the previous classifications of Risk Assessment 4. It was prepared by a team comprising the Assistant Principal, Support Unit staff, and the plaintiff’s parents: Exhibit “A”, p 29.

111. The plan prepared on 20 July 2013 referred to the plaintiff’s risk behaviours observed during taxi transportation. It noted that at times, the plaintiff loses control over her emotions, and can escalate aggressive behaviours, including hitting, kicking other occupants of the taxi, spitting, and verbal abuse. It also noted the plaintiff had engaged in abusive and sexually explicit language, usually not directed at anyone. It was noted that this was thought to be part of her disability. The plan identified a number of strategies aimed at addressing these issues, including a crisis management response for the taxi driver to follow for when such incidents arise.

(24) Incident on 30 July 2013

112. On 30 July 2013, Mrs HHHHH filled out an Individual Student Contact form which described the fact of a welfare incident involving the plaintiff, apparently occurring at 09:00 hours on that day. The context was that it was considered that the plaintiff had arrived at school “very fast”, and she had climbed a veranda wall, and she had then attempted to strip, and she had verbally abused her mother. The status notation on the form was not filled in at all. A note was made of a planned family discussion with “ADHC/PAED/DET”: Exhibit “A”, p 30; Exhibit “2”, Tab 3, p 60. This indicated there would be a discussion planned to take place with the plaintiff’s family, the Department, and the Government agency that dealt with disability services.

113. In her oral evidence, Mrs HHHHH explained that the description of the plaintiff being “fast” was meant to refer to the fact that she was agitated, and fast in her movements, moving her head from side to side, accompanied by a shaking of the arms: T130.39 – T131.16. Ms SSSSSSSSSS added that “fast” was meant to indicate talking and behaving in a manner that might involve talking excessively, moving around in a jumpy manner, and somewhat agitated: T193.13 – T193.17.

114. Following the filling out of the abovementioned form, Mrs HHHHH prepared an internal memorandum to Mr XXXXX X HHHHHH, the District Guidance officer, copied to Ms EEEEE, a School Counsellor, indicating her view that the plaintiff needed a paediatric review as it was thought she had disturbed and sexualised behaviours, and erratic mood swings that did not correspond to the medication schedule. Mrs HHHHH noted the plaintiff appeared to be going through puberty: Exhibit “A”, p 32. There is no equivalent copy of that memorandum in Exhibit “2”.

(25) Dr AAAAAAA ’s letter 1 August 2013 to School Counsellor

115. On 1 August 2013, Dr AAAAAAA wrote to Ms XXX IIIIIII, who it appears, was at that time, the School Counsellor, or believed to be so by Dr AAAAAAA. Dr AAAAAAA referred to the plan for the plaintiff to attend XXXXX X High School in the following year. She referred to the plaintiff’s moderate intellectual impairment, generalised anxiety, ADHD, attachment issues, and absence seizures in the past. Significantly, Dr AAAAAAA ’s letter included the following:

“…

Reviewing her today (Gem)'s anxiety levels certainly have been increasing over the last couple of years and showed quite clearly very high levels of anxieties to males, which is consistent with the history given by her mum. In light of the fact that she is going to be transitioning to high school I have actually elected to do start her on antianxiety medication, as I think that she is going to struggle significantly with that transition. I would be grateful if you two can meet to plan a slow transition for (Gem) into high school. She is obviously going to need to remain in the Support Unit and I know that there are some children currently in the XXXXX X High Support Unit who are likely to be potentially quite scary for (Gem).

Thank you again for your help and assistance. I have made referrals in the past, as has (Gem)'s mother, (the plaintiff’s mother), for (Gem) to access help and support through the ADHC psychologist I will continue to advocate around this, but would be grateful if you could also advocate on her behalf. I have encouraged (the plaintiff’s mother) to ring the team from ADHC again to find out where she is with regard to accessing this service.

Thank you for giving me any feedback with regard to (Gem)'s anxiety levels. The SSRI [anxiolytic medication] she started on will take six to eight weeks to be fully effective.”

[Exhibit “A”, p 31; Exhibit “2”, Tab 3, p 83]

[Emphasis added]

116. From the context of that letter, I interpret the term SSRI to be a reference to a selective serotonin reuptake inhibitor, an anxiolytic medication.

117. The copy of that letter tendered by the defendant bears an initialled signature. I infer from that fact, and from the fact that it came from the defendant’s custody, that someone in authority at the school gave consideration to its contents at some stage following its receipt.

118. The timing of that consideration is unclear. The top of the letter bears the handwritten date “20.8.13”. There is no evidence as to who wrote the note of that date, or in what circumstances, or on what date that note was written on the copy that formed part of Exhibit “2”. I am therefore not prepared to infer that the school had only considered Dr AAAAAAA ’s letter dated 1 August 2013 on 20 August 2013, especially because the copy of that letter within the released documentation pursuant to Government Information (Public Access) Act 2009, had no such handwritten annotations: Exhibit “A”, p 31.

(26) Incident on 16 August 2013

119. On 16 August 2013, Mrs HHHHH filled out an Individual Student Contact form which described the fact of an out of bounds incident involving the plaintiff on that day, in which she had begun climbing on veranda rails. The plaintiff was apparently taken down, and brought to a “time out” session, whereupon she proceeded to climb a brick wall. She was then calmed, and she came down when asked to do so, but she then ran from the room and climbed a mesh wall in an attempt to climb onto a covered walkway roof. The time annotation was 09:00 hours. It was noted that the school then contacted one of the plaintiff’s parents, I infer this was her mother, to come and pick up the plaintiff as the school considered she was not safe to be at school. The status section of this form was left without any annotation: Exhibit “A”, p 33; Exhibit “2”, Tab 3, p 59.

(27) Incident on 20 August 2013

120. On 20 August 2013, Mrs HHHHH filled out an Individual Student Contact form in relation to an uncategorised, but clearly serious incident, the facts of which were described as follows:

“(Gem) unsafe. Moved to verandah. Stripped and climbed mesh and attempted to get through gap. Got stuck. Myself and slso (sic) XX XXXXX X guided her down. Required sitting on floor safety restraint to avoid injury to self and staff. Distressed and crying. Taken to 36S office. Took 15 mins to calm with consistant (sic) holding and reassurance. Kept repeating she was scared. Retreated under blanket then under couch. Calm for 5 mins.”

[Exhibit “A”, p 34; Exhibit “2”, Tab 3, p 54]

121. The contact action section of the form was marked “CRM Update : 20-8-13”. That term CRM appears to be a reference to an un-named client relations manager. That status section of this form was left without any further annotation. A separate file note relating to this incident was also made by an unidentified person, to the effect that the plaintiff was calmed after being held in restraint, and after remaining calm for 5 mins, she accepted and ate an ice block: Exhibit “A”, p 35; Exhibit “2”, Tab 3, p 58. The 20 August 2013 incident was noted at 10:40 hours, so it can be reasonably assumed that the 20 August 2013 incident took place at some time in the morning at or before that time.

122. On the same date, and with reference to the same incident, an unidentified staff member wrote up an untimed RISC Contact Report which referred to the plaintiff having started screaming and jumping about so as to require restraint. The note went on to state that the plaintiff had become calm after 5 minutes, and was offered an ice block which she “accepted appropriately”, and ate: Exhibit “A”, p 35; Exhibit “2”, Tab 3, pp 58 & 69.

123. The tendered records show that Mrs HHHHH had a subsequent telephone conversation with Dr AAAAAAA on that day. This is evident because, on 20 August 2013, Dr AAAAAAA made notes of several relevant telephone conversations she had on that day: Exhibit “2”, Tab 9, p 294.

124. I infer from the circumstances that those calls related to the climbing incident on this date. The first conversation was with the plaintiff’s mother. The effect of that conversation was that the plaintiff was “fine” and “great” at home, but at school, she has been scared, and had been up on the roof. Dr AAAAAAA noted the history of “high anxiety re school. Vomiting again”. She noted that her plan was to speak to the school (“HHHH”), and that the plaintiff was to continue on her medications for the next few weeks at least, noting that she had been taking Luvox, at a dosage of ¾ of a tablet, (apparently daily) for only 2.5 weeks.

125. Dr AAAAAAA then made some notes of a second conversation. I infer from the context, that she had that second conversation with Mrs HHHH HHHHH on behalf of the school: Exhibit “2”, Tab 9, p 294. That note stated:

“D/W HHHH – teacher.

- climbing on veranda → head stuck.

Needed to be restrained today.

Says is scared / cried / then lashing

Can be out of control & then

back to normal quietly.

Happy to be going home when told M

(mother) was coming.

Both agree – need ѱ –

Jenny XXX (indecipherable name, possibly referring to a psychologist named XXXXX X)

- S/C involved [tick symbol]

- ?? XXXXX X XXXX”

[Exhibit “2”, Tab 9, p 294]

[Emphasis added]

126. The note made by Mrs HHHHH as cited at paragraph [120] above did not reflect the undisputed fact that on 20 August 2013, Mrs HHHHH had told Dr AAAAAAA that the plaintiff’s mother had been called in response to the described incident, and that she had been asked to take the plaintiff home, as is evident from the meaning of the emphasised portion of the note made by Dr AAAAAAA as cited at paragraph [125] above.

127. The note made by Dr AAAAAAA as cited at paragraph [125] above indicates that the plaintiff’s climbing behaviour had been discussed with Mrs HHHHH, and that it was agreed the plaintiff needed psychological intervention, or at least consideration by a psychologist because of her behaviour, and that the School Counsellor was involved with the process. I draw that latter inference because of the context in which the words “S/C involved” was used. I infer from the evidence, that the School Counsellor at the time was either Ms XXX IIIIIII (Exhibit “A”, p 31; Exhibit “2”, Tab 3, p 83) or by then, alternatively, possibly Ms EEEEE, neither or whom were called to give evidence.

(28) Student Behaviour Management Plan dated 20 August 2013

128. On 20 August 2013, an Individual Student Behaviour Management Plan was prepared in anticipation of it being reviewed and revised at the school at a meeting scheduled to take place on Friday 23 August 2013, with all team members present: Exhibit “A”, pp 36 – 39; Exhibit “2”, Tab 3, pp 75 – 78. Criticism arises from the scheduled timing of that meeting. It obviously took time to co-ordinate the respective availabilities of the persons with an interest in being present. Rather, the criticism in this case is centred around what the school did or did not do in the meantime in relation to the plaintiff’s safety whilst at the school.

367. For the above reasons, I am satisfied that but for the found negligence on the part of the school, the plaintiff would not have sustained the injuries she incurred in the fall, but also, that the scope of the liability of the school should extend to being held responsible for the consequences of such injuries. The plaintiff has therefore satisfied the requirement of causation.

Issue 4 – Claimed statutory defences

372. In its defence filed on 15 July 2016, by paragraphs 23 and 24, the defendant pleaded its reliance upon s 32 and s 42 of the CL Act as statutory defences to the plaintiff’s claim.

Mental harm defence : s 32 of the CL Act

373. Section 32 of the CLAct provides:

32 Mental harm-duty of care

(1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

374. Since s 32 of the CL Act relates to the issue of the duty of care owed in respect of claims of foreseeable mental harm in the form of recognisable psychiatric injury, and since on the evidence, neither the plaintiff nor her mother seeks to make a claim in that regard, a defence pleaded pursuant to s 32 of the CL Act has no application to this case. No psychiatric opinions were introduced into evidence and there was no oral evidence directed to an issue of that kind.

375. Insofar as it might be argued the plaintiff’s psychological reaction to her injury was not that of a person of normal mental fortitude, sub-section (4) of s 32 of the CL Act makes it clear that a court is not required to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. In this case there is ample evidence to indicate the defendant well knew of the plaintiff’s psychological situation, and her emotional propensities, if not by observations made over time whilst she was in the Support Unit of the school, then by the effect of the letter sent to the school by Dr AAAAAAA, dated 1 August 2013.

376. In that sense, s 32 of the CL Act does not overcome the well settled principle to the effect that the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406. Accordingly, the defence pleaded by reference to s 32 of the CL Act has no bearing in the consideration of this case, and it affords no exculpatory benefit to the defendant in this case.

Resources-based defence : s 42 of the CL Act

377. Section 42 of the CLAct provides:

42 Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

378. The only reference in the evidence to the possibility of a resources-based defence becoming relevant to the consideration required in this case, is the recorded instance, on 14 June 2013, of the staff at the school seeking from the Department of Education, access to further in-school support for the plaintiff due to safety risks (as summarised at paragraph [103] above, and the Departmental response from its placement panel, on 25 June 2013, advising the school that the place it sought for the plaintiff for such further support was not available for her at that time, but that she would be considered for such a place if it became available, as summarised at paragraph [108] above.

379. The evidence in respect of those matters clearly raised a resources issue, but that matter was not argued as a defence, although pleaded. However, for completeness, since that plea was not formally abandoned, I shall briefly consider the implications of that pleaded defence.

380. At the point in time which followed the refusal of the Department’s placement panel to make other immediate arrangements for the plaintiff’s schooling, the school essentially had three choices.

381. The school’s first such choice was to advise the plaintiff’s parents on relevant matters of risk which then prevailed, given the then non-availability of the requested resources. Secondly, the school could have decided to refuse to accept the continued presence of the plaintiff at the school without additional resources on grounds of safety, as had occurred on 16 August 2013, as described at paragraph [119] above, and as foreshadowed as far back as 28 February 2011, as identified at paragraph [90] above. Thirdly, the school continued to accept the plaintiff, but in doing so, decided that it was necessary to apply close vigilance in the course of its supervision of the plaintiff, this being one-on-one supervision, as decided by the Assistant Principle, Mrs HHHHH, and as was indicated by Mr CCCCCC: T83.34 – 49.

382. When the school chose the latter course, it undertook that task according to the duty of care owed to the plaintiff in such circumstances. Accordingly, a resources-based defence does not relevantly arise. It appears that the school had the capacity for one-on-one supervision of the plaintiff, and it undertook to provide that supervision as it considered this to be an adequate discharge of its duty of care. I have found that in the circumstances, the school provided an inadequate response to the duty of care it owed in the circumstances that prevailed. This is because it left open the opportunity for the plaintiff to abscond and climb to heights, notwithstanding the provision of one-on-one supervision, in circumstances where the plaintiff had ready access to climbing points that enabled her to climb onto the roof. No relevant resources-based defence has been shown to arise which would provide a rational basis for sheltering the defendant from the plaintiff’s claim.

Issue 5 – Assessment of damages

383. In the paragraphs that follow, I set out my assessment of the plaintiff’s claim for damages.

Actuarial factors

384. The plaintiff is presently aged 13 years. She has an estimated median statistical life span of 73 years. Whilst there may be a general awareness in the community that persons with particular types of disabilities might have a reduced statistical life span, there was no specific evidence called in this case which would reasonably suggest that this might be so in the plaintiff’s case. The life tables and actuarial discount tables to which courts routinely have regard in order to make arithmetical assessments of future losses already incorporate allowances for the incidence of possible early mortality: O’Brien v McKean [1968] HCA 58; (1968) 118 CLR 540; at [4].

Non-economic loss

385. The plaintiff’s claim for damages for pain, suffering and for the loss of enjoyment and amenity of her life must be assessed according an evaluative judgment that considers the effect of her particular injuries and disabilities upon her, according to an assessed percentage comparison of a most extreme case: s 16 of the CL Act.

386. It is necessary, insofar as is possible on the evidence, to differentiate between the underlying disabilities which the plaintiff had before the subject fall, those disabilities which relate to the after-effects of the fall, and those additional disabilities, if any, that might be thought to have flowed from the plaintiff’s viral illness which she suffered in 2014.

387. In that latter regard, there is no evidence that the plaintiff’s intellectual functioning has been deleteriously affected by her fall on 22 August 2013. Similarly, there is no evidence that the 2014 post-injury viral brain infection, has had any measurable or discernible deleterious effect on the plaintiff’s intellectual or physical functioning.

388. The acute effects of the plaintiff’s calcaneal fractures, and any injury to her lumbar spine, and to her left hip, have receded. The ongoing physical effects of the fall on 22 August 2013 have been that the plaintiff experiences discomfort in her feet on prolonged weight bearing, evidenced by her need to periodically rest her feet, and to rub them. This problem is exacerbated by the plaintiff’s inability to at times regulate her physical activities, and to avoid over-use.

389. Although by 23 October 2013, on examination, the plaintiff had demonstrated a good range of motion in her ankle and sub-talar joints, and the fractures had healed completely, shortly after that assessment, there was a history recorded that the plaintiff could not walk very far: Exhibit “B”, Tab 10, p 330. The plaintiff’s history revealed she could no longer participate in the family activity of bushwalking: Exhibit “B”, Tab 10, p 336. This, and similar restrictions has and will continue to have an obvious deleterious effect on the amenity of the plaintiff’s life, especially as it is essential she remain in a supportive family environment, at least in the short term.

390. By March 2015, the plaintiff was complaining of pain in her feet on weight bearing, with an associated throbbing sensation. The orthopaedic assessment at that time was medial arch flattening and valgus deformity, accompanied by stiffness and a restricted range of motion. The undisputed predicted orthopaedic prognosis at that time was for deterioration of the plaintiff’s hind feet, with the development of sub-talar arthritis with ageing, and in the longer term, the need for sub-talar arthrodesis surgery: Exhibit “B”, Tab 1, pp 1 – 5. The impression is that this will not be minor surgery, it will involve recovery time, and it will obviously have a deleterious impact on the plaintiff’s mobility, agility and capacity to carry out sustained weight bearing physical activity.

391. On 18 January 2017, Dr Gillett considered that even after that surgery, the plaintiff would be limited in walking long distances, and would not have the capacity to walk normally: Exhibit “B”, Tab 2, pp 8 – 9. In the plaintiff’s situation, that is a very serious limitation. After the proposed surgery, she would have scarring, and restriction of talar movements. In the meantime, and until the undoubted need for that surgery arises, the plaintiff will need analgesics, and she will need modified footwear. Another factor to be taken into account is that the proposed surgery, like any other surgery, carries with it risks, including the risk of failure.

392. The psychological effects, if any, of the fall, and the resultant physical disabilities that arise from it, are difficult to define, but it is reasonable to accept the plaintiff’s recorded history that since her fall, she experiences anger when mention was made of the school, and she had disturbed sleep and night terrors: Exhibit “B”, Tab 9, p 330.

393. In my assessment, the plaintiff’s pre-accident situation and impairments meant that she could ill-afford the described additional layers of fall-related physical disability that impact upon her already limited amenity and enjoyment of life, due to the effects of her underlying pre-accident conditions related to her autism and intellectual issues. The plaintiff’s prospect for increasing mobility restrictions, even after future surgical treatment, will have a further negative impact upon her functioning. There are many physical activities requiring mobility, agility and weight bearing which will cause her difficulty post-fusion surgery.

394. There is no reasonable or discernible basis upon which to conclude that the plaintiff’s damages should be in any way reduced for any debilitating effects of the viral illness she encountered in 2014. The evidence concerning that supervening illness, the effects of which now seem to have passed, does not suggest a need to undertake a differential analysis on its ongoing effects: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. I am satisfied that the plaintiff has established that but for the subject fall, she would not have sustained the disabilities I have outlined in the preceding paragraphs: Glen v Sullivan [2015] NSWCA 191; s 5D of the CL Act.

395. On behalf of the plaintiff, it was submitted that s 16 damages should be assessed at 50 per cent of a most extreme case: T222.9. On behalf of the defendant, it was submitted that such damages should be assessed at no more than 25 per cent: T235.24.

396. In my opinion, having regard to the factors I have identified, I consider that the defendant’s submission represents an inadequate assessment. That view was exposed to the defendant during submissions: T235.37. In this case, given the plaintiff’s underlying disabilities which already limit the extent to which she can enjoy the amenity of her life, I consider that the impact of the plaintiff’s disabilities upon the abilities she otherwise had, casts an even greater shadow upon her underlying limitations. Accordingly, in my view, the assessment of s 16 damages should in this case be towards the upper end of the range.

397. On the foregoing considerations, I assess the plaintiff’s damages for non-economic loss at 40 per cent of a most extreme case pursuant to s 16 of the CL Act, which equates to the sum of $242,000.

Future loss of earning capacity

398. On behalf of the plaintiff it was initially submitted that damages for future economic loss should be in the form of a buffer amount reflecting the equivalent of a projected loss of $75 to $100 per week because the effects of the accident has been to extinguish whatever limited earning capacity the plaintiff had before that event: T223.41 – T224.20. In contrast, the defendant submitted that any buffer amount awarded for this head of damage should be small (T242.4), and not more than $50,000: T242.22.

Plaintiff’s most probable circumstances but for injury

399. For the purposes of making an assessment of the plaintiff’s claim for future loss of earning capacity, to the extent that it is reasonably possible to do so, on the basis of the presently available evidence, it is necessary to form an assessment as to the plaintiff’s most likely future circumstances but for the subject injury: s 13(1) of the CL Act.

400. Recognising the plaintiff’s pre-existing medical, behavioural, and developmental conditions, it seems unlikely that when the plaintiff achieves the age of 18 years, she would ever be able to gain and sustain unsupported paid employment on the open labour market.

401. In that regard, I consider that absent the accident, after completing her education to Year 12 (T42.35) in a supportive environment catering for persons with special needs, the plaintiff would most likely have been assisted and trained to participate in some kind of adult activity of a productive and financially remunerative nature, in an assisted or sheltered employment environment.

402. This was very likely to have resulted in some level of income that would serve to supplement the plaintiff’s pension entitlements, which would most probably be the payment of some kind of government benefits in the form of a disability support pension, which it appears, she would in due course be entitled to, and would most likely receive, once she reaches the age of 18 years: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

403. The parties have agreed that as an adult, the plaintiff would be entitled to earn the sum of $82 per week without reducing any pension to which she would otherwise be entitled to receive: Plaintiff’s submissions, 9 May 2017. That said, this does not mean that amount would necessarily represent the extent of her pre-injury earning capacity.

Assessment of damages for loss of earning capacity

404. For the plaintiff to receive an award for future loss of earning capacity, it must be shown not only that such a loss of capacity exists, but also, that it is likely to be productive of a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

405. When assessing future loss of earning capacity, insurance and social security pension payments are generally to be disregarded: National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569; Redding v Lee [1983] HCA 16; (1983) 151 CLR 117. In Redding v Lee it was stated, at [8], that whilst the test to be applied is far from precise, justice requires that certain benefits, which includes the benefit from pensions, should be disregarded in the assessment of damages.

406. The essential matters for consideration when assessing the plaintiff’s loss of earning capacity are, whilst pre-accident, she would have had some impediments to pursuing unsupported work, the likelihood is that such a supported environment would have been available to her, but the physical effects of her injuries has made that endeavour more difficult for the plaintiff to sustain.

407. The factors which persuade me, that but for her injuries, the plaintiff would most likely otherwise be capable of such employment, are that she would be most likely to proceed to complete her schooling to Year 12 in accordance with parental wishes, she would most likely remain under appropriate medical supervision, and would receive appropriate medical treatment, including by medication, aimed at maintaining a stable, productive and nurtured existence.

408. I am satisfied that the plaintiff’s family and her medical attendants would have continued to provide care to her along that pathway, in her best interests, for as long as reasonably possible, and that she would in the future be most likely placed in a supportive adult environment, either with her family or elsewhere, and that this would result in some kind of paid employment, albeit for limited hours, and perhaps not continuously week in and week out, and not necessarily for what would otherwise have been her entire theoretical adult working life.

409. Those factors render it impossible to project a precisely formulated weekly loss for the purposes of arriving at an arithmetical assessment of what would otherwise have been the plaintiff’s earning capacity had she remained uninjured. Nevertheless, those circumstances mandate an assessment of the claim for loss of earning capacity.

410. In this context, it becomes necessary to consider the implications and the effects, if any, that the plaintiff’s 2014 brain infection would have had on those most likely circumstances.

411. In my opinion that supervening brain infection, which doubtless left some residual disability at least for a time, until the plaintiff recovered and reached a stable state of improvement, should be seen as a generalised potential adverse contingency as at 22 August 2013, but which then crystallised in 2014 into a known fact or contingency prior to assessment. Such contingencies can be positive or negative and absent compelling evidence to the contrary, an intervening event does not necessarily break the chain of causation.

404. Accordingly, except where there is scope to discern a differential effect from a known fact or event, a supervening injury does not necessarily reduce the damages to be assessed from the earlier compensable event, other than by way of a contingency to be taken into account; Faulkner v Keffalinos (1971) 45 ALJR 80 at p 85; Baker v Willoughby [1970] AC 467; [1969] UKHL 8; DMN Mining Pty Ltd v Barwick [2004] NSWCA 137, at [40] – [41].

405. If I be wrong in that regard, it is nevertheless important to recognise that the defendant has not called evidence of any deleterious consequences of the supervening event of the plaintiff having acquired a parasitic brain infection: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. This is in circumstances where, on the evidence, I am satisfied the plaintiff’s loss of earning capacity is injury related because it relates to the change in the plaintiff’s physical condition, and there is no discernible difference shown in the plaintiff’s neurological or intellectual functioning: Glen v Sullivan [2015] NSWCA 191; s 5D of the CL Act.

406. The fact that a loss of earning capacity is in this case difficult to quantify does not mean that the loss should not be assessed monetarily, including by taking a broad approach that incorporates a discount for deferral of loss, in the form of an assessed buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

407. Whilst the figure of $82 per week may appear to be a convenient basis upon which to assess the plaintiff’s damages for future loss of earning capacity, on reflection, that approach is too simplistic. There is no reliable evidence upon which to base a projection of that, or any other weekly sum. Accordingly, I consider a buffer amount is the appropriate method by which to assess this head of damage. In that regard, I accept the upper limit of the defendant’s submission. I therefore assess the plaintiff’s damages for future loss of earning capacity in the amount of $50,000.

Future paid domestic assistance

416. The plaintiff made a claim for future paid domestic assistance at the agreed rate of $40 per hour (T222.29) for 2 hours per week. The defendant did not concede this claimed head of damage, or that assessment.

417. That claim is advanced on the basis that 2 hours per week is a good enough educated guess where the plaintiff had a pre-accident ability to do housework, and now in the opinion of Dr Gillett, the plaintiff is going to have trouble with squatting, kneeling, walking and other weight bearing tasks. The projected sum needs to be discounted for deferral until the plaintiff is well into adulthood, given the reasonable doubts about her ability to readily move to a more independent living environment in the short term.

418. I consider that any projection should also be discounted on account of the imponderable factors to do with her underlying condition. Given those matters, and the likelihood that the plaintiff would most likely have to remain in some kind of supported living environment, even in adulthood, where some services would be included, the allowance of 1 hour per week for domestic assistance on a paid commercial basis would be a fair allowance, with appropriate discounts, including for deferral of loss.

419. Although perhaps arbitrary to a degree, I consider the appropriate allowance should be assessed on the basis of a projection of $40 per week for 1 hour of paid domestic assistance from the ages of 20 to 73, namely 53 years (x 988.9), deferred for 5 years (x 0.784), and discounted by 15 per cent for vicissitudes, which yields $26,360, which I round off at $25,000.

420. I therefore award the plaintiff damages for future paid domestic assistance in the amount of $25,000.

Future treatment

421. The plaintiff made a claim for future treatment expenses in the rounded buffer amount of $40,000: MFI “8”; T246.49. That submission was based on deferring the cost and timing of surgery for 15 years. The effect of the defendant’s submissions on this head of damage was that it was accepted that the plaintiff would have the identified future surgery, but no monetary submission was made: T241.10.

422. The plaintiff’s claim was based on allowances for the deferred cost of bilateral ankle arthrodesis procedures, the related expenses that would accompany those procedures, and the likely expenses that would be incurred in the meantime.

423. The evidence for the cost of future treatment and related expenses comes from the report of Dr Gillett dated 18 January 2017: Exhibit “B”, Tab 2, pp 8 – 10. Dr Gillett identifies the sources of expenditure to be analgesics as required, and the need for jogger type footwear, which I infer from the context to involve lifetime expenses. Added to those matters would be the cost of two sub-talar arthrodesis procedures, which would presumably involve fees for the surgeon, the assistant, an anaesthetist, hospital and theatre fees, and post-operative rehabilitation costs, where only the latter have been estimated as to a physiotherapy component of about $1000 for a gait retaining programme.

424. The difficulties of precisely estimating the cost of the identified treatments does not mean that an allowance should not be made for what I consider to be this most probable source of expenditure. In those circumstances, having regard to the same authorities identified in paragraph [414] above, I consider this source of future expenditure, even though part of it is likely to be deferred for an uncertain time, should be the subject of a buffer allowance. I consider the plaintiff’s schedule represents an insufficiently discounted approach. I consider the proper sum to be $25,000. I therefore assess the plaintiff’s damages for future treatment in the amount of $25,000.

Past out-of-pocket expenses

425. The parties have agreed (at T222.10) that the plaintiff’s past out-of-pocket expenses should be assessed in the amount of $12,555.

Summary of damages assessment

426. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$242,000
(b) Future loss of earning capacity	$50,000
(c) Future domestic assistance	$25,000
(d) Future treatment	$25,000
(e) Past out-of-pocket expenses	$12,555
Total	$354,555

Disposition

427. The plaintiff has established an entitlement to a verdict in her favour on the issue of liability, and an interim assessment of damages in the sum of $354,555 in respect of the injuries she received in the accident on 22 August 2013. It is necessary for the parties to either agree upon, or call evidence in relation to, the sum to be added to that assessment in respect of applicable funds management charges before the entry of a final judgment.

Costs

428. As the plaintiff has succeeded in the proceedings, she is therefore entitled to have her costs of the proceedings paid by the defendant. This should be on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

429. I make the following interim orders:

1. Verdict for the plaintiff in the amount of $354,555;

2. Before the entry of final judgment I will hear the parties on the amount to be added to the verdict on account of funds management charges, and consequential orders, including as to costs;

3. Liberty to apply on 7 days’ notice for other orders.

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Amendments

24 May 2017 - Redaction of names

Decision last updated: 24 May 2017