Gray v State of Queensland
[2000] QSC 465
•15 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: Gray v State of Queensland [2000] QSC 465 PARTIES: ANTHONY ROBERT GRAY
(plaintiff)
v
THE STATE OF QUEENSLAND
(defendant)FILE NO: 1993 of 2000 DIVISION: Trial Division DELIVERED ON: 15 December 2000 DELIVERED AT: Brisbane HEARING DATE: 30-31 October, 1-3 and 6 November 2000 JUDGE: Mullins J ORDER: The proceeding be dismissed. CATCHWORDS: TORTS – NEGLIGENCE – plaintiff injured playing schoolboy rugby league – claim for damages for personal injury and consequential loss and damage – whether school negligent based on a breach of duty of care owed to students – whether there was a risk of injury that was reasonably foreseeable.
Education (General Provisions) Regulations 1989
Workplace Health and Safety Act 1989
Commonwealth of Australia v Introvigne (1982) 150 CLR 258
Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272
Ramsey v Larsen (1964) 111 CLR 16
Richards v State of Victoria [1969] VR136
Wyong Shire Council v Shirt (1980) 146 CLR 40COUNSEL: K E Tronc for the plaintiff
M J Burns for the defendantSOLICITORS:
Boyce Garrick for the plaintiff
Crown Solicitor for the defendant
MULLINS J: The plaintiff was injured on Wednesday 15 April 1992 whilst playing rugby league at Goomeri for Gympie State High School in the under 15 team against Murgon State High School's under 15 team. The plaintiff was punched in the course of the game by a Murgon player, Keith Gadd. The plaintiff claims damages for personal injury and consequential loss and damage as a result of the negligence of and/or breach of statutory duty by the defendant.
Background
The plaintiff was born on 11 July 1977 and was therefore 14 years old at the date of the incident. He was born in Tasmania and moved with his parents and younger brother to Gympie in 1988. He attended St Patrick's College for grade 8 and the first term of grade 9. He commenced at Gympie State High School in the second term of grade 9.
Prior to the incident, the plaintiff was a promising athlete, particularly the 100 metres and 200 metres sprints. He was aiming for selection for a national youth team. He also participated in other sports including soccer, basketball, swimming, cricket and, occasionally, netball.
The plaintiff did suffer from anxiety symptoms prior to athletics competitions. As a result of a recommendation by his coach, he was referred to psychiatrist Dr Marilyn Shrapnel whom the plaintiff consulted on 8 October 1991. She described his presenting with anxiety symptoms prior to sports competition and experiencing examination anxiety which caused him to make mistakes. She arranged to teach him some relaxation techniques to help him control his anxiety.
The plaintiff was encouraged by other boys in his grade to play rugby league, because of his speed as a runner. The plaintiff joined a rugby league club and the under 15 squad at school. Prior to the incident, he had trained on one or two occasions for the club and played one club game in which he was tagged on his head. As a result, he began wearing headgear. He also wore a mouthguard. He had played two school rugby league games, before the incident.
About a week prior to the incident the plaintiff had the braces removed from his upper teeth. He was due to have the braces from his lower teeth removed two or three days after the incident. He was therefore wearing braces on his lower teeth at the time of the incident.
It was planned that the plaintiff and his family would drive to Townsville on the evening of Wednesday 15 April 1992 for the North Queensland games and the Queensland country titles that were due to commence on the Friday of that week which was also the commencement of the Easter break.
The claim
The plaintiff's claim against the defendant is based primarily on a breach of the duty of care owed by a school to its student. The particulars of the breach of duty are set out in paragraph 10 of the further further amended statement of claim ("the statement of claim") filed by leave on the second day of the trial:
"(a) Generally
Failure on the part of the members of the teaching staffs of both the Murgon State High School and of the Gympie State High School present at the match, (being the servants of the Defendant) and of the referee of the match, (being the agent and/or servant of the Defendant), to maintain proper discipline among the players and proper observance of the rules of the game, in that there was no, or no adequate supervision or control of the activities of all or some of the players and all or some of the spectators at or about the time of the incident complained of.
(b) Specifically
i.Failure by the teachers from the Gympie State High School to cancel the match, when aware beforehand of the Murgon team's prior reputation for violent play.
ii.Failure by the teachers from the Gympie State High School to cancel the match, when it was obvious to their inspection before the start of the game, that many of the Murgon team were very much larger in physical size than the Gympie team and some of them were apparently over age.
iii.Failure by the teachers from the Gympie State High School to cancel the match, when aware beforehand that the Gympie team were apprehensive of injury in what was regarded as a 'grudge match', and a match that was 'going to be physical'.
iv.Failure by the teachers from the Gympie State High School to call their team off the field and cancel the match when it had become obvious that the Murgon team were playing violently and putting the Gympie team at risk of injury.
v.Failure by the teachers of both Murgon State High School and Gympie State High School to select and appoint a person of sufficient competence and authority to referee the game in accordance with the rules of the sport.
vi.Failure by the referee, as agent of the Defendant, to control the violent and dirty play committed by the Murgon team, and to properly, or at all, enforce penalties for the violent play constituting breaches of the rules of sport.
vii.Failure by the teachers of both Gympie State High School and Murgon State High School to intervene properly or at all, when it was obvious to them that the referee was either unable or unwilling to control the game properly, or at all, in accordance with the rules of sport.
viii.Failure by the teachers of both the Murgon State High School and the Gympie State High School to properly, or at all, control the spectators who were encouraging violent play and breaches of the rules of the sport in general, and urging the Murgon players to 'get' the Plaintiff, so that he 'would not run again'.
ix.Failure by the teachers of the Gympie State High School to properly, or at all, provide adequate training to the Plaintiff, in preparation for his playing in a sport that was new to him, and take reasonable precautions to prepare him for avoiding risk of physical injury in that new sport.
x.Failure by the teachers of both the Gympie State High School and the Murgon State High School to arrange for ambulance, first aid and medical facilities to be readily available in case of serious injury.
xi.Failure by the teachers of Murgon State High School to intervene when the Murgon team were encouraging each other to commit violent pay (sic) and breaches of the rules.
xii.Failure by the referee to take any action against the Murgon players for violent play, when asked to do so by the players of the Gympie team.
xiii.Failure by the teachers of the Gympie State High School to obtain prompt medical treatment for the Plaintiff after he had been knocked unconscious.
xiv.Failure by the teachers of both Gympie State High School and Murgon State High School to provide any adequate system of supervision of the player of the Murgon team.
xv.Failure by the teachers of both the Gympie and Murgon State High Schools and the appointed referee, to issue to the Murgon team any or any adequate warning as to the dangers of violent play in breach of the rules.
xvi.Failure by the teachers of both the Gympie and Murgon State High Schools and the referee to take any or any adequate precautions for the safety of the Plaintiff.
xvii.Exposure of the plaintiff by the teachers of both the Gympie and Murgon State High Schools and the referee to a risk of injury which could have been avoided by the exercise of reasonable care."
The defendant admitted that during the game the plaintiff was punched by a Murgon player. The defendant denied that the incident was caused by any breach of the duty owed by the defendant to the plaintiff.
The law
A school owes its student a duty to take reasonable precautions for the safety of the student on the occasion in question: Ramsey v Larsen (1964) 111 CLR 16, 27, Commonwealth of Australia v Introvigne (1982) 150 CLR 258, 269, 280. The duty is non-delegable in the sense that the duty cannot be discharged by the school's employing competent teachers. It is not a duty of insurance against harm: Richards v State of Victoria [1969] VR136, 138-139.
It is not alleged by the plaintiff that the game of rugby league itself involved an unreasonable risk to the safety of the plaintiff: compare Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272 where a student injured playing the game "Rob the Nest" was unsuccessful in alleging that the game was such a dangerous game that the pupils ought not to have been permitted to play it at all. What is alleged, in general terms, is that there was something about how this particular game was going to be conducted or was being conducted that should have made the defendant foresee that there was a risk of injury to the plaintiff which a reasonable person in the defendant's position would have taken reasonable care to avoid.
Both parties relied on the following statement of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
Witnesses
The plaintiff and his mother Mrs Lindy Gray gave evidence. Other players in the Gympie under 15 team who gave evidence were Mr Nathan O'Connor (called by the plaintiff) and Mr Michael Day and Mr Paul McGrath (who were both called by the defendant). The defendant called two teachers from Gympie State High School, Mr David Gallagher (who was the coach of the Gympie team) and Mr Brett Smith (who drove the bus that took the Gympie team to Goomeri). The defendant also called the coach of the Murgon team Mr David Knight, the referee of the match Mr Bevan Costelloe, another Murgon teacher who was the manager of the Murgon team Mr Roger Webber and the coach of the open rugby league at Murgon State High School Mr Greg Smith.
The plaintiff called accountant Mr Neil McLennan on the issue of the plaintiff's claim for economic loss. There were numerous medical witnesses: neurologist Dr Noel Saines, neurophysician Dr John Bradfield, psychiatrists Dr Donald Grant and Dr Francis Varghese and clinical neuropsychologists Mr Louis Salzman and Ms Deborah Anderson.
Credit of witnesses
The proceedings were not commenced until 2 June 1998. Most of the witnesses therefore were not required to recall the incident and surrounding events until 6 years after they occurred. This partly explains the divergence of the evidence about the details of the incident.
Understandably the plaintiff has no memory of playing the game. Unlike the other witnesses (apart from Mrs Gray) the plaintiff has had cause to revisit the incident, preceding events and the aftermath on many occasions when providing his history to doctors and other professionals with whom he has consulted subsequent to the incident.
From my observations of the plaintiff and evaluating his evidence, he genuinely believes that the incident has been the cause of what he has perceived to be failures in his athletic, scholastic and work careers. That perception coloured his evidence and made him prone to exaggeration. The plaintiff's first memory after the incident is being in a dentist's chair. The plaintiff could not know the period for which he was unconscious after the punch, except by deduction. Yet, he gave evidence that he was unconscious for a period of about 35 to 40 minutes. It was apparent from the medical evidence that there is a distinction between a period of unconsciousness and a period of amnesia. Dr Saines gave evidence that the period of actual unconsciousness is an indicator of the severity of the injury, as can be the periods of amnesia anterograde and retrograde. No witness who was at the game gave any evidence which supported the plaintiff's being unconscious other than momentarily or for a few minutes. The history given to the plaintiff's general medical practitioner Dr Manton when he returned to Gympie that evening was that the plaintiff was concussed and disoriented for about 15 minutes. Yet, when assessed by Ms Anderson on 19 September 1992, the plaintiff reported that he was unconscious for 35 minutes. There are other aspects of the plaintiff's evidence where I make specific findings rejecting his evidence for reasons which are set out below. I have therefore approached the plaintiff's evidence with caution.
Hearing of the incident, its aftermath and the subsequent medical problems suffered by the plaintiff were obviously stressful to his mother. It was submitted by the defendant that Mrs Gray was reconstructing her evidence. Having regard to the specific findings which I make in respect of matters involving Mrs Gray's credit, there is substance in this submission. I have no doubt that Mrs Gray also genuinely believes that the incident has been the cause of the plaintiff's subsequent problems and she to has let that belief affect her recollection.
It was apparent from my observations of Mr O'Connor and from what he said during the course of his evidence that he is a friend of the plaintiff and was keen to assist the plaintiff in his claim. The detail of Mr O'Connor's recollection raised questions of how much was actual recollection and how much was reconstruction. There was an element of exaggeration in Mr O'Connor's evidence. I have therefore been cautious about accepting Mr O'Connor's evidence, where there is no corroborative evidence.
Mr Gallagher was more convincing in some aspects of his evidence than others. I have concluded that his recollection in one aspect has been affected by not having to recall the relevant events for six years. That aspect, which I deal with below, is his evidence of how he became aware of the plaintiff's injury. After evaluating Mr Gallagher's other evidence in the light of the evidence of other witnesses, I am satisfied that this one aspect where I have found that his recollection was mistaken does not result in a finding that his evidence was unreliable. My conclusion was otherwise.
I was particularly impressed with Mr Knight. He conveyed that he was doing his best to recall the events accurately, despite the lapse of time. He was not defensive about his team or the game or his role.
I was also impressed with Mr Costelloe and was satisfied that despite the fact that he had refereed hundreds of games since the subject game, he had sufficient recollection to be able to comment on his control of the game.
None of Mr Brett Smith, Mr Webber, Mr Greg Smith, Mr Day or Mr McGrath had any interest in the outcome of the plaintiff's action. Where there is inconsistency in the evidence of any of these witnesses, the only explanation is the lapse of time since the relevant events.
Prior to the incident
The game was in a knockout competition for the Keith Gibb Shield organised by one of the rugby league associations such as the Wide Bay division of Queensland Rugby League. The Gympie team was officially entered by the school in the competition. That team did not play the Murgon State High School under 15 team in the local school competition. Murgon State High School had a reputation at that time for winning rugby league competitions. According to Mr Knight, whose evidence I accept, the reputation of Murgon was such that it would be a hard game, because the Murgon students were fast, agile and tackled hard, but their reputation had nothing to do with violence. The nature of the reputation of the under 15 Murgon team at that time was confirmed by Mr Greg Smith. As the coach of the open rugby league team at Murgon State High School, Mr Smith was the unofficial head coach of rugby league at Murgon State High School. Mr Smith did not know of any team from Murgon who had a reputation for violent play whether under 15 or open. He was aware that Murgon State High School had a reputation throughout the State as being a very good rugby league school and he considered that reputation was well earned, having regard to Murgon's record over the years. The plaintiff has failed to establish the factual basis for the allegation in paragraph 10(b)i of the statement of claim.
The plaintiff stated in his evidence that several days before the game was due to be played Mr Gallagher had told the team that the match had to be played on neutral ground and that it was going to be a grudge match. He also said that Mr Gallagher had said that there would be punches thrown and that it would be a rough game and that it had to be played on neutral ground as if the Gympie team beat them in Murgon, the bus would be rolled by the Murgon team. Mr Gallagher denied making any such comments. According to both Mr Gallagher and Mr Knight, the reason (which I accept) that the game was to be played at Goomeri was that it was situated between Gympie and Murgon and therefore saved some travelling for one of the teams. Neither Mr Day nor Mr McGrath could recall that Mr Gallagher said anything to the effect that if the match were played in Murgon, the bus would be rolled if Gympie won the game. Mr McGrath was also asked whether he could recall Mr Gallagher's saying words in Mr McGrath's presence to the effect "this is going to be a rough match or a dirty match" or something like that. Mr McGrath did not recall that. Because of the competition in which the game was being played, and the fact that the teams had not played each other previously, there was no basis for it to be a "grudge" match. All that Mr O'Connor stated that Mr Gallagher had said to the team was that it would be "a rough game but to play our own game and hopefully the referee would control that sort of style of play". When cross-examined, Mr O'Connor was unable to confirm that Mr Gallagher had used the description "rough" rather than "tough". I therefore accept Mr Gallagher's denials about the making of the comments attributed to him by the plaintiff before the day of the game.
The plaintiff gave evidence about his team mates discussing what the game would be like and anticipating that it would be rough. Mr Day stated that his father had commented that Murgon was "a pretty rough side" which was his opinion from years ago when he was playing. I accept that the team members including the plaintiff and in the plaintiff's presence may have speculated on what the game would be like, but that the speculation does not appear to have been based on the true reputation of the Murgon under 15 team.
Although it is not the subject of any pleading in the statement of claim, evidence was adduced on behalf of the plaintiff to the effect that Mr Gallagher was aware that the plaintiff's parents had refused permission for the plaintiff to play in the game, but that Mr Gallagher pressured him into playing.
Mrs Gray said that she telephoned the school a couple of days before the game and spoke to Mr Gallagher and told him that her son would not be playing in the game, because she was concerned about his safety. She stated that Mr Gallagher responded that he understood how she felt. Mr Gallagher denied speaking to Mrs Gray prior to 15 April 1992. Mr Gallagher did not recall being told by Mrs Gray that she was afraid of her son's getting injured.
Mrs Gray wrote a note to Mr Gallagher which she gave to the plaintiff on 15 April 1992 in which she says that she explained that her son was definitely not to play in the game. The plaintiff confirms that he was given that note by his mother.
If Mrs Gray had the telephone conversation with Mr Gallagher in the terms in which she gave evidence, it makes it unlikely that she would have needed to write a note to convey what she said she had already conveyed in that conversation. Mrs Gray's explanation for why she wrote the note is unconvincing. She said that after she had telephoned Mr Gallagher her son came home from school and told her that Mr Gallagher said he did not have anything to be frightened about, because he was not going to be in the scrum. Mrs Gray said that as her son still seemed to be having pressure put on him to play, she wrote the note. If Mrs Gray had had the conversation with Mr Gallagher in the terms about which she gave evidence, it is unlikely that Mr Gallagher would have attempted to persuade the plaintiff to play in the game. Mrs Gray did not complain to the principal about her son's playing in the game which would be expected if Mrs Gray had telephoned Mr Gallagher to say that her son would not be playing. I therefore find that Mrs Gray did not have a telephone conversation with Mr Gallagher a couple of days prior to 15 April 1992 and therefore had not conveyed to him that her son was not allowed to play in the game.
The plaintiff gave evidence that at the morning tea break on 15 April 1992 he went to the staff room to tell Mr Gallagher that he was not allowed to play in the game and he used having to go to the athletics meet in Townsville as the excuse. He said that Mr Gallagher's response was that he was needed for the game. The plaintiff stated that he spoke to Mr Gallagher again when he was getting on the bus for the trip to Goomeri which was around midday. It was on this occasion that the plaintiff said that he told Mr Gallagher that he had a note from his mother, but did not show him the note. He said that Mr Gallagher's reaction was the same that he was needed for the game.
Mr Gallagher denied that on the day of the game either at the morning tea break or when the plaintiff was getting on the bus the plaintiff had told him that he was not allowed to play. Mr Gallagher stated that he did not know anything about a note from Mrs Gray. Mr Gallagher had about 30 boys who were training to be in the team. He picked a squad of 20 to train for the game. He did not consider the plaintiff to be a vital player. He knew he was a fast runner and therefore of advantage in attack, but did not consider he was quite as good as a defensive player. The plaintiff admitted that he ended up going to Goomeri to impress Mr Gallagher and his team mates, even though he knew that his parents did not want him to play. The plaintiff's evidence about these attempts to convey to Mr Gallagher that he was not allowed to play was unconvincing. It is not consistent with his having rung his mother from school that morning to get her to bring his football boots to the school at the morning tea break. I accept Mr Gallagher's evidence that these conversations alleged by the plaintiff did not occur and that prior to the game Mr Gallagher was unaware that Mrs Gray had sent a note for him with the plaintiff which was to inform him that the plaintiff was not to play in the game.
The incident
One of the issues raised by paragraph 10(b)ii of the statement of claim was the size and age of the Murgon team members. One of the few memories of the events prior to the game which the plaintiff stated that he still had was his observation about how big the members of the Murgon team were. Mr O'Connor stated that at the outset he noticed that the Murgon team members were a lot bigger and a few of their players looked older than the Gympie team members. On the other hand, Mr Day did not recall that there was anything out of the ordinary about the size of the Murgon players.
Exhibit 40 is a photocopy of the page from the Murgon State High School year book for 1992 which has a photograph of the under 15 rugby league team showing Mr Knight and some of the members. Mr Knight was able to say that the two biggest boys in that team were the two front rowers and they were included in that photograph. He was also able to say that most of the team members were Aboriginal boys who were wiry, small and fast on their feet. I do not accept the evidence of the plaintiff and Mr O'Connor about the size of the members of the Murgon team.
As to the age of the Murgon team members, Mr Knight was able to identify a list of 18 names who were members of the under 15 team in that year, although Mr Knight was unable to confirm the actual members of the team on the day of the game. He was able to say that the list of 18 comprised the boys who would have played at some stage during that year. The birth certificates for the boys on that list were included in Exhibit 41. The only evidence as to what was the cut off date for determining the age of a boy to play under 15 rugby league in 1992 was Mr Gallagher's saying that the boy had to turn 15 or younger in that year. Most of the boys on that list were born in 1977 including Keith Gadd whose date of birth was 6 May 1977, making him 14 years on the day of the game. One boy on that list was born on 25 October 1976. In any case, I also accept Mr Knight's evidence that the boys could not possibly have been over age, as they nearly all played junior rugby league for which they had to be registered which required production of birth certificates. The same boys had played together in the under 13 team and then come through to the under 14 team and then to the under 15 team. In addition, it was unlikely that the Murgon team would have risked having over age players as, according to Mr Gallagher whose evidence I accept, if a team were to win and it was then discovered they had played over age players, that team would then be out of the competition. The plaintiff therefore cannot establish paragraph 10(b)ii of the statement of claim.
I have found that the game was not a "grudge" match. It was obviously going to be physical, having regard to the reputation of the Murgon team for playing a hard game. Mr Gallagher stated that no student had expressed any apprehension to him about injury, prior to the incident. As Mr Brett Smith was only involved as the driver of the bus, paragraph 10(b)iii of the statement of claim must relate only to Mr Gallagher. Mr Day stated that he was not scared about playing the Murgon team but was "a bit wary" on the basis of the Murgon team's reputation. Mr McGrath was not scared or apprehensive of playing the Murgon team. I accept Mr Gallagher's evidence on not being informed by the students of any apprehension of injury from the game. The plaintiff therefore has not established paragraph 10(b)iii of the statement of claim.
Another issue raised by paragraph 10(b)viii of the statement of claim was the alleged failure of the teachers at the game to control the spectators who it was alleged were encouraging violent play and breaches of the rules of the game. Evidence was adduced as to the number and identity of the spectators supporting the Murgon team. Mr Greg Smith was only present at the game, because the open team was to play following the completion of the under 15 game. That means the spectators supporting the Murgon team were at least the reserves for the under 15 team, the open team and accompanying teachers. That is consistent with Mr Knight's recollection that the only spectators he could recall were the teams that were playing after the under 15 game. Mr Gallagher did not recall that there were many spectators. Mr Costelloe could also recall that the members of the open Murgon team were present as spectators during the game. Neither Mr Gallagher, Mr Knight, Mr Costelloe nor Mr Webber were able to recall incitement of violence or breaches of the rules on the part of the spectators supporting the Murgon team. Mr Day recalled a few spectators and could not remember that they were inciting violence. Mr Knight was adamant that he would not have stood for the spectators supporting his team to encourage violent play. I have no doubt from the manner in which he gave his evidence that, as he said, if there had been yelling out in that way, he would have stopped it straight away. I do not accept Mr O'Connor's evidence that the Murgon supporters were yelling out words to the effect "hit them" or "hammer him" or "hurt them" or "smash them". The plaintiff has not established paragraph 10(b)viii of the statement of claim.
Mr O'Connor was the captain of the Gympie team. He played in the second row. The plaintiff played on the wing. He described the game as a very dirty game – a very rough game. He said there was a lot of dirty play like late tackles, "facials", elbows on the ground and a lot of dropped knees in tackles. He said that Mr Gadd had been involved in dirty play like late tackles and "facials" prior to the incident, although he did not identify the Gympie players who were affected by that dirty play. He said that the incident occurred in the second half of the game. He described it as follows:
"Tony had made a quite a large run up the field, which he was well-known for because he was so fast. He was tackled by Keith Gadd. Tony knocked on the ball. It was picked up by Keith Gadd, which is carry on play. Keith must have ran back, probably around 20, 30 matters (sic) and Tony was tackling him but couldn't get him down, so myself and Mark Clelland tackled him. Tony took the first marker position. When you're tackled in union – sorry, rugby league, you can have two markers and they stand in front of the person playing the ball. Tony was first. I was second. Keith's played the ball. I have moved off to the left and I have heard Keith say – I can't remember what he said, something. 'What did you say?' I turned and saw him, Keith, grab Tony with one hand, and with the other hand swung a large punch and connected to his mouth. Tony went down and I – I run in to try to push him away and Keith had a swing, clipped me on the nose, gave me a nice blood nose, and then tried to push him back. Tony was on the ground holding his face and by that time the ref sort of got there and the players that were holding Keith Gadd – Keith was basically standing over Tony just before that saying – can I swear? Saying, 'Come on, fuckhead. Get up and have another go', sort of taunting him on the ground. Tony was – I don't know if he was unconscious, but he was holding his face and laying still on the ground."
Mr O'Connor stated that there were no other injuries, apart from the ones sustained by the plaintiff. Mr O'Connor gave evidence that he had made about 10 or more complaints to the referee throughout the game about violent play and that the referee did not intervene following his complaint. No other witness supported Mr O'Connor on this aspect and I do not accept that he made those complaints to the referee during the game. The plaintiff has therefore failed to establish paragraph 10(b)xii of the statement of claim.
While the plaintiff was laying on the ground after the punch, Mr O'Connor saw a touch judge provided by the Murgon team run on and the referee went down to the plaintiff and said "give me a look" and when the plaintiff moved his hands away, Mr O'Connor saw that the plaintiff's mouth was full of blood and the plaintiff's teeth were all bent in. Mr O'Connor cannot recall whether the plaintiff was carried or walked off the field.
Mr Day was a reserve for the game. He watched from the sideline until the plaintiff was injured and left the field, when he went on to replace the plaintiff on the wing.
Mr Day described it as "a tough game" and "a pretty hard game" and recalled seeing a couple of high tackles. He stated that the plaintiff was punched either towards the end of the first half or the start of the second half. He also described it as "a pretty quick game" and that "It was pretty hard, hard tackles, lots of tackles being made, pretty much".
He described the incident in the following terms:
"Could you tell the Court what you saw leading up to that?-- I think, prior to that – I think Tony had made a break up the field and they'd brought him down and they had the ball and proceeded back up the field.
Yes?-- I think Tony tackled the fellow who punched him and yeah, stood up and punched Tony in the head, in the face.
Did you see?-- Tony went down and didn't get back up, yeah.
Sorry. Did you see Nathan O'Connor punched?-- No."
Mr Day rated the game as the roughest game he had played while at school.
Mr Day recalled that the game was stopped for about 10 minutes until the plaintiff went off the field. He thought that the plaintiff was carried off.
Mr McGrath played half back for the Gympie team in the game. He stated that the incident occurred within the first 10 minutes of the second half of the game. He described the incident as follows:
"What do you recall about the events leading up to that incident?-- Just Tony was about to make a tackle on the opposing player.
Did you know that player's name?-- I do now. At the time I didn't.
What's his name?-- Keith Gadd.
So Tony was about to make a tackle?—Yeah, he then offloaded – the other player offloaded the ball. Tony continued with the tackle but he was committed to the tackle.
Yes?-- But didn't fire through with it. Then Keith Gadd must have resented this and punched him."
Mr McGrath described it as the roughest out of the three games that he had played in, presumably, that season, as a school boy, but that it was not the roughest game he had ever played in. He did not consider it any rougher than the club football he was playing at the same time. He described it as a "good hard game" with "hard tackles" and "very little, if any, dirty play, illegal tackles and so forth".
Mr McGrath recalled that after the incident the referee stopped the game and with other persons rushed over to the plaintiff. Mr McGrath recalled that the game was stopped for about 5 minutes while waiting for the plaintiff to be taken off the field and attended to.
Mr Gallagher did not see the incident. He recalled that, prior to the plaintiff's being injured, it was a very fast game and a very skilful game. Mr Gallagher considered that the referee had handled the game reasonably well and did not consider that there was a lack of proper observance of the rules of the game. The final score was in favour of Murgon 40 to 10.
Mr Gallagher stated that the injury to the plaintiff came to his attention at half time when the boys were coming off the field and one of the boys came up to him and said "Have a look in Tony Gray's mouth, sir". Mr Gallagher stated that the plaintiff was walking off the field with the other boys, when he called him over and the plaintiff opened up his mouth and he looked inside and could see that his teeth were held together with braces, but had been knocked back at an acute angle and there was blood and mucus there. Mr Gallagher stated that he realised immediately that the plaintiff needed medical attention and dental attention. Mr Gallagher stated that he was watching the game closely the whole time and offered as an explanation for his failing to see the incident that it must have been behind the play and, as the play had moved on, he was observing the player with the ball. The difficulty with this evidence is that it is hard to reconcile with the evidence of other witnesses that when the plaintiff was lying on the ground, he was attended by the referee and the play was stopped. I therefore conclude that Mr Gallagher's recollection about how the plaintiff's injury came to his attention is mistaken.
I accept that Mr Gallagher did not see the incident and that the likely explanation is that offered by him. It was submitted on behalf of the plaintiff that it was inherently improbable that Mr Gallagher did not see the punch, when Mr Day gave evidence that not only did he see it, but also heard it, while standing with Mr Gallagher on the sideline. Mr Day's evidence was equivocal about whether he was standing next to Mr Gallagher:
"And you were standing right beside Mr Gallagher when you saw that punch?-- Well, I might have been, yeah, I am not sure. Can't remember. It was a long time ago.
...
And at the time you were standing with Mr Gallagher?—I think I was – would have been beside him, yeah, pretty well.And this was at the sideline?-- On the sideline, yeah.
And were there fellow players and reserves there?-- Oh, there could have been, people standing – I don't know exactly where they were standing. They should have been on the sideline somewhere."
Mr Knight recalled that the incident occurred late in the first half of the game. He did not see the incident. He recalled that the referee sent Mr Gadd off for 10 minutes to the "sin bin" and that when Mr Gadd came off, he had a look at his injured hand. Mr Knight recalled talking to Mr Gallagher at half time and telling him that he would not be putting Mr Gadd back on. The reasons for Mr Knight's making that decision were that Mr Gadd's knuckles were bleeding and he did not want Mr Gadd playing again in case anyone tried to get even with him.
Mr Knight could not remember anything about the game prior to the plaintiff's being injured which could be called violent. Mr Knight disagreed with the suggestion put to him that right from the start of the game Mr Gadd was involved in dirty play. Mr Knight disagreed with the suggestion put to him that the referee did not control the match properly.
Mr Knight made a report in connection with the incident which is dated 29 May 1992. This report states:
"The referee sent Keith off to the sin bin for 10 minutes. During the half time break, I spoke to the Gympie Coach and we decided to keep Keith off for the rest of the match to avoid any repercussions."
Mr Brett Smith did not really watch the game, although he was standing on the sideline and at times looking at it. He thought that the plaintiff was injured in the first half of the game and that the plaintiff was brought to the sideline and there were a lot of people around seeing how he was and then he went over to the plaintiff. Mr Smith recalled that the plaintiff was conscious from when he was brought to the sideline.
Mr Costelloe did not see the incident. He recalled that it occurred about 5 or 6 minutes before half time. Mr Costelloe was an experienced and qualified referee. The fact that he was a teacher at Murgon State High School did not disqualify him from refereeing the game or detract from his competence or authority. This was borne out by Mr Greg Smith's evidence. The plaintiff cannot establish paragraph 10(b)v of the statement of claim.
I accept that Mr Costelloe followed his usual practice when the teams came onto the field prior to the start of the game and gave his usual speech which dealt with playing within the rules of the game. The plaintiff cannot establish paragraph 10(b)xv of the statement of claim.
I accept Mr Costelloe's evidence that he had control of the game at all stages. He did not see any dirty play during the game before the plaintiff was punched and did not feel that the game was getting out of control. He recalled that he became aware that the plaintiff had been injured when one of the teachers was on the field assisting the plaintiff and he then held the game up and went back to see what the problem was. He stated that after the plaintiff had been taken off the field, the game continued and he sent Mr Gadd to the sin bin. He can recall speaking to the Murgon coach and the Gympie coach at half time and saying that it would be a good idea if Mr Gadd was kept off the field for the remainder of the game.
Mr Webber recalled that the incident happened just before half time. He can recall meeting Mr Gadd at the sideline and having a look at the cuts across his fist. Mr Webber could not recall any injuries in the game apart from the injury to the plaintiff. The game did not stand out in his mind as being a particularly dirty game. When it was put to Mr Webber that the referee had failed to properly control the game, Mr Webber could not remember anything done by the referee which was wrong or that the referee missed incidents. He thought that the referee had done a reasonable job.
Findings about the incident
The preponderance of evidence is against a conclusion that prior to the incident the Murgon team including Mr Gadd were playing violently and putting the Gympie team at risk of injury. It was obviously a hard game with effective tackles. Even accepting Mr Day's evidence that there were a couple of high tackles, that was not enough to make those observing the game closely, namely Messrs Gallagher, Knight, Webber and Costelloe, to conclude that it was violent and that the Gympie team members were at risk of injury. I find that Mr Gadd was not involved in dirty or violent play prior to the incident. The lack of violence on the part of the Murgon team is borne out by the lack of injuries, other than to the plaintiff. The plaintiff has failed to establish paragraph 10(b)iv of the statement of claim. It therefore follows that the plaintiff has failed to establish paragraphs 10(b)vi, vii, xii and xiv of the statement of claim.
Because of no evidence of violent play and breaches of the rules, the plaintiff cannot establish the factual basis underlying paragraph 10(b)xi of the statement of claim. In any case I accept the evidence of those witnesses including Mr McGrath that the Murgon players were not encouraging each other to commit violent play or dirty play.
I find that the incident occurred late in the first half, because I accept the evidence that there was some consultation among the referee Mr Costelloe, Mr Gallagher and Mr Knight at half time about keeping Mr Gadd off the field for the rest of the game.
I find that immediately preceding the incident the plaintiff had made a break with the ball and ran up the field, before he was tackled. I find that the plaintiff lost the ball and that Mr Gadd picked the ball up and ran with the ball back the other way. I find that the plaintiff gave chase and was involved in either a tackle or mistackle of Mr Gadd. After Mr Gadd no longer had the ball, I find that he punched the plaintiff in the mouth. It is apparent that the punch was not orthodox play and was aberrant conduct. It is not necessary to find a reason for the punch, but it is likely that it was either the plaintiff's saying something to Mr Gadd which was perceived as a taunt (as recalled by Mr O'Connor) or by the plaintiff's tackling or mistackling Mr Gadd after he had offloaded the ball (as recalled by Mr McGrath).
In relation to paragraph 10(b)ix of the statement of claim, there was some evidence about the nature and extent of the training undertaken by the plaintiff at school in preparation for the game. It is not necessary to recite all the relevant evidence, because there was no evidence of what, if any, precautions could have been taken to prepare the plaintiff for avoiding the risk of the incident which I have found to be an unexpected event. The plaintiff therefore has failed to establish paragraph 10(b)ix of the statement of claim.
It was conceded on behalf of the plaintiff that he did receive proper dental treatment and medical treatment in Murgon from Mr Watt and Dr Gangemi. In any case there was no evidence of any causal connection between the allegation in paragraph 10(b)x of the statement of claim and the injuries suffered by the plaintiff in the incident. The plaintiff cannot establish liability of the defendant for his injuries, by reference to paragraph 10(b)x of the statement of claim. The same conclusion applies to paragraph 10(b)xiii of the statement of claim.
Paragraphs 10(a) and (b)xvi and xvii contain general allegations which add nothing to the specific particulars of negligence which are otherwise set out in paragraph 10(b) of the statement of claim. The plaintiff has therefore not established these general allegations.
Breaches of statutory duty
The plaintiff made alternative claims that the defendant had breached its statutory duty. The first claim was based on a breach of section 9 of the Workplace Health and Safety Act 1989 on the basis that the plaintiff was in the same position as an employee and that the defendant as the employer owed the plaintiff the duty to ensure the health and safety of the plaintiff. The content of the duty imposed by section 9 of that Act depends on the wording of that Act. The definition of "employee" in section 6 of that Act as a person who works for an employer did not extend to the plaintiff. That Act therefore did not impose any statutory duty on the defendant in respect of the plaintiff's participation in the game.
The second claim of breach of statutory duty was based on section 36 of the Education (General Provisions) Regulations 1989 which provides:
"The principal of a State school shall be responsible for the progress and good behaviour of a student whilst such student is under his care and control and he shall make arrangements for the effective supervision of the students during such times and for staff teachers to assume duty as required for this purpose."
There were no particulars of the alleged breach of this provision. It is not clear whether it is relied on in respect of the supervision of Mr Gadd or the plaintiff or both. The defendant submitted that the provision did not create a statutory cause of action where a student was not effectively supervised by the teacher delegated for that purpose by the principal. It is not necessary to determine whether there is such a statutory cause of action. If there is, it adds nothing to the allegation of negligence in relation to the failure to the defendant to supervise either Mr Gadd or the plaintiff.
Conclusion on the issue of liability
In view of these findings which I have made in relation to the plaintiff's claim based in negligence and breach of statutory duty, the plaintiff has failed to prove liability on the part of the defendant for the injuries he sustained as a result of the incident. It follows that the proceedings should be dismissed.
It is strictly unnecessary to consider the quantum of damages appropriate to the plaintiff's injuries. As the quantum of damages depends on what injuries were caused by the incident which depends on the evaluation of all the evidence adduced relevant to that issue, I will proceed to make findings relative to the issues of quantum.
Events immediately after the incident
The plaintiff was taken in the school bus by Mr Brett Smith to Dr Gangemi and dentist Mr John Watt at Murgon. According to Mr Watt's report dated 28 May 1993, four lower anterior teeth were displaced lingually and the mucosa around those teeth were lacerated. Mr Watt x-rayed those teeth and repositioned them, using existing orthodontic wiring to hold them in place. Three sutures were used on the mucosa.
Mr Brett Smith had telephoned the school about the incident and from Murgon telephoned Mrs Gray in order to get permission for the emergency treatment work on the plaintiff's teeth.
The plaintiff travelled back to Gympie on the bus with the other members of his team. Mr Gallagher sat close to the plaintiff on the bus. He estimated about one seat away. He recalled that he asked the plaintiff at least twice "How are you feeling, Tony?" and that the plaintiff responded each time by nodding and saying "I'm okay". Mr Day recalled that the plaintiff was sick a few times on the bus on the way back to Gympie. He also stated that the plaintiff lapsed in and out of consciousness on the bus. He explained that he was sitting up the front next to the plaintiff and he and the plaintiff were having little bits of conversations, but the plaintiff would "sort of doze in and out".
The plaintiff was collected by his mother from the school. Mr Brett Smith can recall walking down the footpath at the school with the plaintiff to take him to Mrs Gray. He can recall having a conversation with Mrs Gray in which she expressed gratitude for the help that had been given to the plaintiff.
Mr Gallagher did not recall having a conversation with Mrs Gray when the bus got back to the school. He did not recall speaking to Mrs Gray until about a week later, when she telephoned him at the school. Mrs Gray said that she spoke to Mr Gallagher when the bus returned and that he was very apologetic about what happened and said that he had never seen anything like that ever in a game of school rugby before and suggested to her that he go up to the school the next day to take the matter further. Mr Gallagher conceded it was possible that he could have spoken to Mrs Gray when the bus returned, but he did not recall. Mrs Gray did not go up to the school the next day. In the light of Mr Gallagher's evidence about the nature of the game and his evidence that he had previously experienced injuries in school boy football like that sustained by the plaintiff, it is not likely that he spoke to Mrs Gray in the terms which she alleged in her evidence.
The plaintiff was taken to his treating dentist Mr Maher who reviewed the injuries and observed that the lower teeth had been put back into their correct position. He was also taken to Dr Manton and was admitted to a private hospital in Gympie for the night.
The plaintiff was unable to attend the athletics meet in Townsville. He had the Easter school holidays to recuperate and then returned to school.
Subsequent medical history
About 2 weeks after the incident the plaintiff returned to athletics training. He was undertaking some training, when his legs collapsed. He said "My legs just sort of went like jelly. I had trouble holding myself up". The plaintiff consulted his general medical practitioner, Dr Manton, and was admitted to Gympie Hospital and then transferred to Nambour General Hospital for observation. As the plaintiff had a virus shortly prior to the onset of these symptoms, a provisional diagnosis of Guillain-Barre syndrome was made. The plaintiff was discharged on 7 May 1992 by which time his limb weakness had recovered.
According to the plaintiff there were two more episodes of his legs feeling weak. The plaintiff was admitted to Royal Brisbane Hospital on 15 September 1992 and remained there until 22 September 1992. He had mild weakness of his arms and legs and was treated by neurophysician Dr John Bradfield and neuropsychologist Ms Deborah Anderson.
The plaintiff told both Dr Bradfield and Ms Anderson that after the punch during the game, he was unconscious for about 35 minutes.
The investigations performed at Royal Brisbane Hospital were normal. There was no sign of organic neurological disease.
Ms Anderson considered that the plaintiff had an unusual presentation for a person who had sustained a minor head injury. On formal assessment there was no evidence of memory or intellectual problems, but during the interview Ms Anderson considered that the plaintiff was overwhelmed by the whole experience and was confused as to how his future in athletics would be affected. She did consider that some psychological factors may be affecting his presentation. Ms Anderson would defer to the opinion of the plaintiff's treating psychiatrist.
The plaintiff then consulted Dr Bradfield as a private patient on 2 November 1992. Dr Bradfield provided a report dated 4 November 1992 to Dr Manton. In that report Dr Bradfield stated that he did not consider the diagnosis of Guillain-Barre syndrome could be made. Dr Bradfield conjectured that the plaintiff may have developed post concussional psychological symptomatology resulting in his symptoms. When giving oral evidence Dr Bradfield confirmed that his conclusion about the plaintiff's symptoms at the time of presentation in late 1992 and as a result of the investigations at the Royal Brisbane Hospital was that they were of a psychological nature, but Dr Bradfield conceded that he would defer to a psychiatrist on that issue.
On 31 December 1992, the plaintiff fractured his nose in a poolside accident.
In early 1993 the plaintiff became depressed during the school holidays. Sometime during the first two weeks of school in year 11 the plaintiff consulted psychiatrist Dr Eckersley and was treated for depression.
In May 1994 the plaintiff was hit in the right eye while playing rugby union.
Dr Manton referred the plaintiff to Dr Herd on 14 July 1995, when the plaintiff was complaining of chronic fatigue. The plaintiff reported to Dr Herd that since his injury in April 1992 he had suffered persistent fatigue and lethargy, apart from several months around the end of 1994 and in the last 5 weeks before the consultation. Dr Herd formed the impression that the plaintiff did not meet the criteria for chronic fatigue syndrome.
On 23 May 1996 the plaintiff was driving his motor vehicle, when he braked and clipped a kerb and the vehicle skidded sideways into a tree. He lost consciousness and was taken to Gympie hospital. He had a large swelling on the right side of his head, a headache and bad short term memory.
In July 1996 the plaintiff consulted psychiatrist Dr Seabridge. The plaintiff told him that he had been set back by three events: the death of a close school friend in a motor cycle accident, the suicide of another friend who had handled the death of the friend in the motor cycle accident badly and the death of the plaintiff's mother's sister in law who was only 31 years old from terminal cancer.
On 16 July 1996 the plaintiff underwent surgery in the form of a septo-rhinoplasty with respect to his nose.
The plaintiff underwent tests during 1997 to ascertain whether there was any reason for the difficulties he was finding with his university studies. Mr Peter Freney in his report dated 11 June 1997 diagnosed the plaintiff as having a visual-perceptual dysfunction called scotopic sensitivity or Irlen syndrome which affects reading, studying and writing/spelling activities. Mr Freney suggested wearing tinted filters on the plaintiff's glasses to elevate some of the problems. An educational consultant Ms Claire Russell diagnosed the plaintiff as being a person who reads fluently and accurately, but whose comprehension is very poor. Psychiatrist Dr Janis Carter in her report dated 27 July 1997 diagnosed the plaintiff as suffering from "a severe form of specific developmental dyslexia, with features in addition of ADHD". Of all the medical specialists and other consultants seen by the plaintiff, Dr Carter was the only one who diagnosed dyslexia.
In mid-December 1997 the plaintiff had an argument with his girlfriend and attempted suicide using a gun. Dr Manton referred the plaintiff to psychiatrist Dr Gelb. The stressors which the plaintiff mentioned to Dr Gelb were that he hated working at McDonalds, he had been drinking heavily at the time, dropping out of university and ongoing conflict with his parents. In cross-examination the plaintiff offered as an explanation for not mentioning the football injury to Dr Gelb that he was late for the appointment. Dr Gelb diagnosed an adjustment disorder with depressed mood and suggested a 3 month trial of Zoloft-50mgs daily. Dr Manton then continued with providing the plaintiff with prescriptions for Zoloft.
Dr Manton subsequently referred the plaintiff to psychiatrist Dr Donald Grant who provided Dr Manton with a report dated 17 May 2000 in respect of a consultation on 15 May 2000. Dr Grant considered that the plaintiff should stay on Zoloft 100mgs per day. Dr Grant saw the plaintiff again on 13 June 2000. In his report dated 25 October 2000 Dr Grant stated:
"Basically my conclusion was that he was suffering from a rather atypical recurring mood disorder with some bipolar elements. The question of any possible organic cerebral contribution to this was left somewhat open, but there was no real evidence to suggest this. It would be most unusual for such a disorder to be caused by a minor concussive head injury. It is more likely that the head injury may have acted as some kind of catalyst for a series of developmental difficulties at a vulnerable time in Anthony's life."
For the purpose of giving oral evidence Dr Grant was provided with further reports relating to the plaintiff which he had not seen at the time of treating him. He concluded that the pattern to the plaintiff's depression was that he developed episodes of depression which could last anything from a couple of days up to a couple of weeks and that depression could become quite severe and there was an uncertain history of his possibly having episodes of elevated mood or hypomania occurring for brief periods prior to the onset of depression. He considered that the depression was triggered by adverse life events. He considered that the episodes of collapse due to weakness of the legs were emotionally caused and may have been conversion disorders and therefore a symptom of emotional psychological problems rather than physical problems. Dr Grant would not have expected those collapses to have been the result of the head injury. He considered that the head injury could have become a trigger in terms of anxiety in situations such as playing football or similar circumstances.
The defendant had the plaintiff examined for the purpose of a medico-legal report by psychiatrist Dr Frances Varghese on 1 September 1999. Dr Varghese's report is dated 27 October 1999. Dr Varghese concluded that the plaintiff had a psychiatric condition of major depression for a period of around 2 years in 1993 and 1994 and that it was reasonable to attribute part of the cause of the depressive episode to the incident. For the purpose of giving oral evidence, Dr Varghese was provided with additional information about the plaintiff's medical history and Dr Grant's reports and a transcript of Dr Grant's evidence. In the light of that additional information, Dr Varghese agreed with the evidence given by Dr Grant and that the fundamental problem for the plaintiff was a recurrent affective disorder or a current major depression.
The plaintiff was assessed by Mr Salzman for the purpose of a medico-legal report on 29 January 1999. Mr Salzman was not provided with the assessment done by Ms Anderson in September 1992. He also proceeded on the basis that the plaintiff was knocked unconscious for approximately 40 minutes. Mr Salzman had not been informed of the plaintiff's treatment in 1991 by Dr Shrapnel. Ms Anderson was able to comment that the results obtained by her in 1992 and Mr Salzman in 1999 on neuropsychological testing were similar, although the performance of the plaintiff was worse in four of the tests conducted by Mr Salzman. Mr Salzman concluded that provided there were no pre-existing psychological problems, it was reasonable to assume that the cognitive and psychological difficulties that he had been experiencing were as a result of the incident.
Mr Salzman's conclusion depended on the history that he was provided. It was inaccurate and incomplete. I therefore have reservations in acting on Mr Salzman's opinion.
Education and work history
The plaintiff described his academic result in years 8 and 9 as "mostly very high achievements and high achievements – A's and B's". The plaintiff's impression of his results is borne out by the first and second semester reports for year 8. He did very well in mathematics and science and was above the class average in all his subjects. His report for semester 1 for year 9 shows five B's, two D's in general shop A and graphics, and an E in business principles and practice which was a new subject for him. In semester 2 of year 9 he obtained five B's, two C's, and one D. His results in semester 1 of 1992 (which incorporates periods prior to and after the incident) were five B's and three C's. His results in semester 2 of year 10 were affected by absences from school. He obtained A's in science and mathematics, four B's, a D in graphics and an E in general shop A.
The plaintiff's results in semester 1 of year 11 were poor. He obtained six E's. In semester 2 of year 11 he obtained a B in health and physical education, three D's and two E's. In semester 1 of year 12 the plaintiff obtained two B's, three D's and one E. In semester 2 of year 12, he obtained five E's and one D. As a result, he obtained an OP of 24 which was not sufficient to gain entry into university. The plaintiff therefore repeated year 12 at St Patrick's College. He obtained sound achievements in four subjects and limited achievement in one subject and an OP of 19 which enabled him to gain entry, on the basis of his residence, to the Sunshine Coast University.
The plaintiff was unsuccessful in returning to competitive athletics.
The plaintiff enrolled for a business degree at Sunshine Coast University. He withdrew his enrolment in semester 1 of 1996. In semester 2 of 1996 he passed two subjects. He failed the four subjects for which he was enrolled in semester 1 of 1997. The plaintiff failed the two subjects for which he was enrolled in semester 2 of 1997. He was excluded in 1998. In semester 1 of 1999 he was enrolled in three subjects. He withdrew from one subject, passed one subject and failed one subject. He failed the three subjects for which he was enrolled in semester 2 of 1999. He was excluded in 2000.
The plaintiff worked at McDonald's at Gympie between 1996 and 1999. The plaintiff commenced part-time work for accountants Schuh & Co in September 1999 and commenced full-time work on 6 December 1999. The plaintiff eventually resigned from that employment on 14 July 2000, because he felt he was being used in that he was paid a minimal amount and expected to work more hours than he was actually paid for.
What is apparent from the plaintiff's academic results after the incident is that the marked decline occurred in the year following the incident. The plaintiff's results in Year 10 were consistent with those he had obtained in the previous year and had even improved in the second semester of 1992. The plaintiff's poor results in Year 11 coincided with the first diagnosis of his suffering from depression and treatment by a psychiatrist. That depression was not observable when the plaintiff was hospitalised in September 1992.
The plaintiff's medical history subsequent to the incident is extensive. Although the plaintiff attributes almost all his problems to the incident, it is difficult to accept that, when the depression from which the plaintiff suffers and which is of significance in that history is triggered by many stressors which have been identified variously by those treating the plaintiff. In the light of Dr Grant's opinion, I am not satisfied that the plaintiff has proved that the incident was the cause of the limb weakness, psychiatric condition or depression from which the plaintiff has suffered. The plaintiff has failed to show that his reduced performance at school in Years 11 and 12 and difficulties with studies at university and his inability to return to athletics are attributable to the incident.
Assessment of damages
If the plaintiff had been successful in establishing liability, the damages which would need to be assessed would be those applicable to the physical injuries sustained in the incident. Dental reports were tendered in evidence by consent. It appears from those reports that the past dental expenses incurred by the plaintiff were $1,642.50. The plaintiff described five lower teeth as being dead and black in colour and that he anticipated having at least and possibly four crowned. The defendant submitted an allowance of $5,500 by way of future dental treatment would adequately cover the costs of the crowns and related dental work on the basis that a crown for each tooth would cost around $950 according to Dr Alister Lee's report dated 30 September 1999, this allowance for future dental expenses is reasonable.
As damages for pain and suffering and the loss of amenities of life must relate to the period immediately following the incident, subsequent dental treatment and future dental treatment, they must be a relatively modest amount. I therefore fix general damages in the sum of $10,000.
There was evidence of gratuitous care and assistance provided by Mrs Gray for her son. The defendant suggested that an amount of $1,000 would more than adequately cover the time that Mrs Gray was required to take the plaintiff to the dentist and look after him while he recuperated from the incident. I accept that submission.
On the basis on which this assessment is being carried out, no question of economic loss arises.
I therefore calculate damages, if it were necessary to do so, as follows:
Pain, suffering and loss of amenities of life $10,000.00
Interest (2%pa for 82/3 years) 1,733.33
Special damages 1,642.50
Interest (5%pa for 82/3 years) 711.75
Past gratuitous care and assistance 1,000.00
Interest (5%pa for 82/3 years) 433.33
Future dental treatment 5,500.00
$21,020.91
Orders
It follows that the proceeding must be dismissed. I will hear submissions on costs.
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