"H" v State of New South Wales

[2009] NSWDC 193

Reported Decision: 9 DCLR (NSW) 255

District Court

CITATION:	“H” v State of New South Wales [2009] NSWDC 193
HEARING DATE(S):	28, 29, 30, 31 October, 3, 4, 5, 6, 10 November, 5 December 2008
JUDGMENT DATE:	28 August 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $627,468. 2. Defendant to pay the plaintiff’s costs.
CATCHWORDS:	TORTS – negligence – schools – duty of care owed to school student – death threat issued to plaintiff by fellow student in classroom – subsequent assault and stabbing of plaintiff in school playground – liability of the school authorities for injury to plaintiff - DAMAGES – chronic post-traumatic stress disorder – judicial notice of existence of stressors in the community – persistent post-traumatic phobia relating to Asian people resulting in plaintiff moving to live abroad in Dubai – domicile and assessment of damages – limitations in use of school records to impugn credit of plaintiff – duty to mitigate – non extra-territorial effect of NSW law in Dubai – no relevant failure to mitigate - EXPERT EVIDENCE – obligations on expert witness to go beyond innuendo and state cogent reasons for suggesting embellishment, exaggeration and fabrication of symptoms by plaintiff – rejection of flawed reasoning by clinical psychologist who suggested plaintiff exaggerated his complaints – UCPR, Schedule 7, expert witness code of conduct, clause 5(c) – assessment of multiple heads of damage.
LEGISLATION CITED:	Crown Proceedings Act 1988 Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules 2005, Schedule 7
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 Bradshaw v McEvens Pty Ltd (1951) 217 ALR 1 Commonwealth of Australia v Introvigne [1982] HCA 40; (1982) 150 CLR 258 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270 Cox v State of New South Wales [2007] NSWSC 471 Crown Glass and Aluminium Pty Ltd v Ibrahim [2005] NSWCA 195 Doubleday & Anor v Kelly [2005] NSWCA 151 Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345 Gett v Tabet [2009] NSWCA 504 Geyer v Downs & Anor [1977] HCA 64; (1977) 138 CLR 91 Ghunaim v Bart [2004] NSWCA 28 Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15; (2007) 229 CLR 498 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Larson v Commissioner of Police [2004] NSWCA 126 Luxton v Vines [1952] HCA 19; (1952) CLR 352 Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Mason v Demasi [2009] NSWCA 227 Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Penrith City Council v Parks [2004] NSWCA 201 Rabay & Anor v Bristow [2005] NSWCA 199 Ramsay v Larsen [1964] HCA 40; (1964) 111 CLR 16 Richards v State of Victoria [1969] VR 136 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of NSW v Moss [2000] NSWCA 133 State of Victoria v Bryar & Anor [1970] 44 ALJR 174 Strinic v Singh [2009] NSWCA 15 Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Williams v Eady (1983) 10 TLR 41 Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Zoram Enterprises Pty Ltd v Zabow [2007] NSWCA 106 Zreika v State of NSW [2009] NSWCA 99
PARTIES:	“H” (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	3500 of 2004
COUNSEL:	Mr TDF Hughes (Plaintiff) Mr AB Parker (Defendant)
SOLICITORS:	GH Healey Lawyers (Plaintiff) Hicksons Lawyers (Defendant)

JUDGMENT

Table of Contents

A.	INTRODUCTION
Nature of the case	[1]
Procedural history	[2]
Suppression orders	[3] – [4]
Liability issues for determination	[5]
Heads of damage for assessment	[6]
Summary of findings	[7]
Array of witnesses	[8] – [9]
Array of documentary evidence	[10]
Credit of the plaintiff – liability issues	[11]
B.	LIABILITY
Facts	[12] – [111]
Background	[12] – [38]
First incident – 8.40am confrontation and death threat	[39] – [50]
Second incident – 11.00am assault and stabbing	[51] – [74]
Ambulance attendance	[75] – [76]
Hospital treatment	[77] – [79]
Recuperation following discharge from hospital	[80]
Return to school	[81] – [85]
Commentary by school principal	[86] – [89]
Earlier history of concerns over student safety issues at school	[90] – [92]
Pre-incident evolution of plan to deal with discipline issues	[93] – [98]
Pre-incident welfare policy	[99] – [103]
Pre-incident awareness of issues of violence in schools	[104] – [111]
Expert evidence on liability issues – Dr Tronc	[112] – [131]
Applicable legal principles	[132] – [143]
Duty of care	[132] – [134]
Scope and content of duty of care	[135] – [137]
Applicable legislation – Civil Liability Act 2002	[138] – [143]
Findings concerning breach of duty of care	[144] – [162]
Findings - awareness of duty of care, its scope and content	[145]
Findings - first incident	[146] – [159]
Findings - second incident	[160] – [162]
Findings concerning causation	[163] – [175]
Findings - Civil Liability Act 2002, s 5D	[163] – [166]
Findings - Defence based on Civil Liability Act 2002, s 42	[167] – [175]
Conclusions on liability	[176] – [178]
C.	DAMAGES ISSUES
Injuries	[180]
Plaintiff’s experts on damages issues	[181] – [255]
Dr Kanawati	[182]
Dr Ali	[183] – [187]
Dr Takas	[188] – [190]
Ms Perlmutter	[191] – [194]
Dr Canaris	[195] – [203]
Dr Diamond	[204] – [218]
Dr Dinnen	[219] – [229]
Professor Kennett	[230] – [253]
Dr Milder	[254] – [255]
Defendant’s experts on damages issues	[256] – [280]
Dr Macauley	[257]
Dr Roberts	[258] – [267]
Dr Champion	[268] – [272]
Dr Brown	[273] – [280]
Findings on conflicting expert opinions on damages issues	[281] – [388]
Aptness of oppositional defiant disorder label	[282] – [285]
Aptness of anti-social personality disorder label	[286] – [292]
Alleged malingering	[293] – [346]
Diagnosis / prognosis	[347] – [388]
Credit of the plaintiff – damages issues	[389] – [391]
Disabilities	[392] – [396]
Mitigation	[397] – [401]
Domicile	[402] – [411]
Life expectancy	[412]
D.	ASSESSMENT OF CLAIMED HEADS OF DAMAGE
Non-economic loss	[414] – [420]
Past loss of earning capacity	[421] – [455]
Object and process of assessment	[421] – [423]
Plaintiff’s pre-injury work history	[424] – [426]
Submissions on past loss of earning capacity	[427] – [430]
Plaintiff’s probable earnings but for injury	[431] – [440]
Plaintiff’s earnings since his injury	[441] – [451]
Assessment of past loss of earning capacity	[452] – [455]
Future loss of earning capacity	[456] – [501]
Submissions on future loss of earning capacity	[456] – [457]
Evidence touching on future earning capacity	[458] – [473]
Assessment of damages for future loss of earning capacity	[474] – [475]
Whilst in Dubai	[476] – [480]
First year after return from Dubai	[481] – [490]
Between ages 33 years and 55 years	[491] – [495]
Between ages 55 years and 67 years	[496] – [499]
Past loss of superannuation	[502]
Future loss of superannuation	[503]
Future treatment	[504] – [538]
Submissions on future treatment	[504] – [506]
Findings on the need for future treatment	[507] – [514]
Treatment in Dubai	[515] – [520]
Treatment in first year after return to Australia	[521] – [524]
Treatment whilst working	[525] – [531]
Treatment after early retirement	[532] – [536]
Past out-of-pocket expenses	[539] – [540]
Tabulated summary of damages assessment	[541]
E.	DISPOSITION AND ORDERS
Disposition	[542]
Orders	[543]

A. INTRODUCTION

Nature of the case

1. The plaintiff claims damages against the State of New South Wales pursuant to s 5 of the Crown Proceedings Act 1988 in respect of injuries he received when he was aged 16 years and whilst he was a student at Birrong Boys’ High School. The plaintiff was set upon by a number of assailants and stabbed during the course of an affray in the school playground at the commencement of a morning recess. This followed an earlier death threat made to the plaintiff by a fellow student in the morning roll call classroom in the presence of a teacher. The plaintiff holds the school authorities responsible for the assault and stabbing which he claims was permitted to occur due to alleged breaches of the duty of care that was owed to him by the school authorities.

Procedural history

2. The events giving rise to the proceedings occurred on 26 February 1998. On 9 May 2003 the proceedings were initially commenced in the Supreme Court of NSW naming the NSW Department of Education and Training and the State of NSW as the defendants. Following a number of procedural motions, on 6 August 2004, on the plaintiff’s motion, the proceedings were transferred to the District Court of NSW. The statement of claim was amended and the State of NSW remained as the only defendant. Thereafter, following some 19 listings for various procedural motions, directions, hearings, status conferences and call-overs in this court between 17 September 2004 and 8 September 2008, the matter was listed for trial. The proceedings involve the analysis and resolution of numerous issues. The delay between the incident in question and the listing of the matter for trial was influenced by the fact that the plaintiff had moved from Sydney to Dubai as a strategy for coping with his post-traumatic stress disorder (“PTSD”) and a related specific phobia that had developed as a consequence of him having been attacked and stabbed. The trial, which was contested on all issues, was listed for 3 days of hearing and proceeded over the course of 10 hearing days.

Suppression orders

3. During the course of the trial I was asked by the parties to make suppression orders pursuant to s 72 of the Civil Procedure Act 2005 in relation to the identity of certain witnesses. In the interests of justice, and to ensure the safety of the plaintiff and certain witnesses, I made orders suppressing the publication of the name and any images of the plaintiff and some of the other witnesses and any information tending to reveal the identity of the plaintiff. For this purpose I have assigned the following litigation pseudonyms:

(a) “H” to refer to the plaintiff;

(b) “G” to the student who threatened the plaintiff and allegedly stabbed him;

(c) “J” to the teacher who went to the plaintiff’s assistance when he was set upon by assailants and stabbed;

(d) “D” to the first of the plaintiff’s sisters to give evidence;

(e) “N” to the second of the plaintiff’s sisters to give evidence;

(f) “Y” to the male roll class teacher who witnesses the earlier scuffle between “G” and the plaintiff as well as the later death threat to the plaintiff;

(g) “Z” to the female teacher who witnesses the earlier scuffle between “G” and the plaintiff;

(h) “A” to the former student who gave evidence concerning the culture of ethnic segregation within the school.

4. The nature and content of the evidence in this case and the importance of the issues to the parties required that the reasons for judgment include a detailed and more extensive examination of the evidence to a degree that would perhaps not normally be required for the determination of such cases : Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Kirby P at 259 and Mahoney JA at 271.

Liability issues for determination

5. The following liability issues arise for determination:

(a) The scope and content of the acknowledged duty of care owed to the plaintiff;

(b) Whether there were relevant breaches of the duty of care owed;

(c) If it is established that there were breaches of the duty of care owed, did such breaches either cause or materially contribute to the harm occasioned to the plaintiff;

(d) What defences if any are available to the defendant.

Heads of damage for assessment

6. A total of seven claimed heads of damage required assessment. These are listed below together with paragraph references:

Head of Damage	Paragraphs
(a) Non-economic loss	[414] – [420]
(b) Past loss of earning capacity	[421] – [455]
(c) Future loss of earning capacity	[456] – [501]
(d) Past loss of superannuation	[502]
(e) Future loss of superannuation	[503]
(f) Future treatment	[504] – [538]
(g) Past out-of-pocket expenses	[539] – [540]

Summary of findings

7. I find that there were material breaches of the duty of care that the school authorities owed to the plaintiff. These breaches involved successive systemic failures on the part of two teachers at the school with regard to their obligations towards the plaintiff following the initial confrontation of the plaintiff by the person who ultimately assaulted and stabbed him. I find that these breaches were the cause of the plaintiff’s ultimate physical and psychological injuries. I find that these events have left the plaintiff with chronic PTSD and its associated symptoms. I find that the requirements of s 5B and s 5D of the Civil Liability Act 2002 for establishing liability and causation have been satisfied. I find that the resources based defence raised pursuant to s 42 of the Civil Liability Act 2002 has not been made out. I assess damages in the plaintiff’s favour in the sum of $627,468.

Array of witnesses

8. The following 13 witnesses were called during the course of the 10 day trial:

(a) The plaintiff, “H”;
(b) Dr Keith Tronc, an educational administrator and expert witness retained by the plaintiff’s solicitor;
(c) Mr “A” a former student at Birrong Boys’ High School;
(d) Mr Peter Nagle, the former member for the NSW state electorate of Auburn;
(e) Mr John Lucas, the former principal of Birrong Boys’ High School;

(f) Dr Michael Diamond, a consultant psychiatrist retained by the plaintiff’s solicitor;
(g) Dr Anthony Dinnen, a consultant psychiatrist retained by the plaintiff’s solicitor;
(h) Dr Christopher Canaris, a consultant psychiatrist retained by the plaintiff’s solicitor;
(i) Professor Keith Kennett, a consultant psychologist and educator retained by the plaintiff’s solicitor;
(j) Dr Dan Milder, a consultant neurologist retained by the plaintiff’s solicitor;
(k) Mr Ian Kennedy, the plaintiff’s accountant;
(l) The plaintiff’s sister “D”;
(m) The plaintiff’s sister “N”.

Unavailable witnesses

9. At the time of the trial Mr “J”, who was a teacher at the school, and Mr Smith who was the deputy principal of the school at the time of the plaintiff’s injury, were both ill and were unavailable to give evidence. The parties agreed that no adverse comments would be made concerning the absence of any oral evidence from these persons. There were two other teachers who were witnesses to relevant events, namely Mr “Y” and Miss “Z”. There was evidence that at the time of the trial these two persons were still engaged in the teaching profession in NSW. They were not called as witnesses to give evidence. The plaintiff submitted that in the absence of an explanation as to why these witnesses were not called, as was the case with Mr “J” and Mr Smith, the defendant’s failure to call these witnesses in circumstances where they were in a position to give evidence on relevant matters if they were in dispute, for example, on the matter of the death threat and its sequelae, this justifies the inference that these two witnesses were not able to relevantly contradict the plaintiff’s evidence on critical matters or to advance the defendant’s case on those issues. I accept that submission : Jones v Dunkell (1959) 101 CLR 298.

Array of documentary evidence

10. The parties tendered voluminous documentary exhibits. The plaintiff tendered exhibits in the series “A” to “AX”. The defendant tendered exhibits in the series “1” to “13”. The documentary evidence included extensive records from the Department of Education concerning liability and damages issues as well as prolix reports from clinical psychologists and psychiatrists, extending in all to hundreds of pages. Because the defendant did not call its expert witnesses to clarify their views which were in conflict with the views of the plaintiff’s experts, this added to the burden of analysis of the kind referred to in Majkic v Bonnano [2008] NSWCA 253 per Bell JA at [26] and Larson v Commissioner of Police [2004] NSWCA 126 per Tobias JA at [48].

Credit of the plaintiff – liability issues

11. I considered the plaintiff’s evidence on the liability issues to have been given in a moderate and credible manner. He made concessions when appropriate. In my assessment he was a truthful witness. There was nothing that emerged from within his evidence on the liability issues that was improbable or inconsistent or that caused me to doubt his evidence concerning his version of the events that related to the liability issues. There was nothing that emerged from the evidence tendered by the defendant or from a consideration of the entirety of the damages evidence that caused me to consider that the plaintiff’s credit as a witness had been impeached.

B. LIABILITY

Facts

Background

Plaintiff’s family and personal history

12. The plaintiff was born in Sydney in 1982. His parents migrated to Australia from Lebanon in 1976. He is the second youngest of 7 siblings of whom 6 survive. His siblings are all accomplished persons. Prior to the events in question he enjoyed good physical and emotional health. He was aged 16 years when he was injured. He was aged 26 years at the time of the trial.

Plaintiff’s primary schooling

13. The family home was initially in Bass Hill in western Sydney. The plaintiff received his initial primary education at the Bass Hill Public School in 1988, 1989 and 1990. In 1991 the plaintiff moved with his family to Maroubra where his parents operated a business. The plaintiff attended Maroubra Public School in 1991. In 1992 and 1993 he attended Rainbow Public School in Randwick. He did well at primary school as is evident from the many certificates and merits he was awarded. On completion of his primary schooling he was awarded the principal’s medal of merit for his achievements in addition to the other merit certificates that had been awarded to him in earlier years.

Plaintiff’s enrolment at Birrong Boys’ High School

14. At the time the plaintiff’s primary schooling concluded, his parents sold the family business and the family then moved back to live in their Bass Hill home. In 1994 the plaintiff was then enrolled in Year 7 at Birrong Boys’ High School. He progressed through and completed years 7, 8, 9 and 10. In 1998 he was enrolled in Year 11 at that school when he was injured a few weeks after the beginning of the school year.

Plaintiff’s school reports

15. The plaintiff’s school reports from Birrong Boys’ High School show that when the plaintiff went to high school he became unsettled in his attitude to schoolwork. The reports show that there were absences and late attendances.

16. In 1994 his Year 7 mid-year report shows the plaintiff was absent for 7 days, 4 of them unexplained and he was late on 9 days. The student advisor’s comments encouraged him to settle down and direct his energies towards his schoolwork. The principal’s comments indicated it was an unsatisfactory report and attention was drawn to the plaintiff’s classroom behaviour.

17. In 1995 the Year 8 mid-year report shows the plaintiff was absent for 11 days, 5 of them unexplained and he was late on 11 days. The student advisor noted some improvement and both he and the principal signalled the need for greater effort.

18. In 1996 the Year 9 mid-year report shows the plaintiff was not absent or late at all. The principal noted the plaintiff had the potential to do better.

19. The Year 9 end of year report in 1996 showed the plaintiff was absent for 11 days, 2 of them being unexplained and lateness was noted on 5 days. The principal’s comment was an encouragement for the plaintiff to show greater commitment and application, noting that the plaintiff’s teachers believed he could improve.

20. The Year 10 report for 1997 was not tendered in evidence and its absence was not the subject of comment. Exhibit “F” comprised certificates and a teacher assessment concerning the plaintiff’s successful completion of placements in a work experience programme in that year. These documents indicated the plaintiff was punctual, interested, appropriate, exhibiting an above average ability to relate to employees. He received average assessments in a range of the listed descriptors for assessment.

21. A review of the plaintiff’s school reports and the pre-incident school records shows that the plaintiff was a confident if not headstrong adolescent who had evidently not yet reached maturity in age or behaviour. In my view there is nothing in those records and reports which detracts from the credibility of the plaintiff as a witness.

22. Understandably, given the plaintiff was injured on 26 February 1998, there were no reports tendered concerning the plaintiff’s progress at school for the first few weeks of Year 11 in 1998.

Ethnic and racial demarcations within the school population

23. In 1998 Birrong Boys’ High School had an enrolment of about 630 students drawn from a diverse range of national, ethnic and racial groups. In addition to students of Anglo-Celtic and European origins, there were significant numbers of students who were from Arabic, Vietnamese, Chinese, Macedonian, Croatian and Pacific Islands origin. These groups were inter-mixed in the general allocation of students to particular classes within the school. At the relevant time the student to teacher ratio at the school was about 70 : 1.

24. During the recess and lunch times the students at the school tended to congregate into social divisions according to their ethnic and racial origins. Particular groups tended to congregate in and occupy particular areas of the school grounds during their recess and lunch breaks. The students of Arabic origin tended to socialise in sub-groups as reflected by their Muslim, Christian or Druse affiliations. The plaintiff is of the Druse faith.

25. It was the plaintiff’s practice to make an effort to socialise with students from other groups and to move across these de-facto ethnic divisions in order to mix to try to make a diverse range of friends amongst the groups within the school. In his primary school years he was accustomed to having such friendships. This attitude of the plaintiff was based on his experience that students of different ethnic backgrounds in the previous schools he had attended had been well integrated to the social fabric of the school.

Evidence of tensions and episodes of violence amongst students at the school

26. When the plaintiff arrived at Birrong Boys’ High School in Year 7 he detected that the school had what he considered to be a tense and unwelcoming environment. He observed that the students were segregated into the different ethnic groups. This was evident in the way in which groups from Arabic, Asian and Australian backgrounds congregated along the demarcation lines of ethnic origins. This was most unlike his experience of the integrated environment he had experienced at Primary School. The plaintiff’s evidence on these matters was unchallenged.

27. The plaintiff described his own observation of the school practice of what he described as random bag searches that were conducted on a weekly or fortnightly basis. At the time he did not know the reasons for this practice. The principal at the time, Mr Lucas, acknowledged that such events occurred but these were not searches as such. Mr Lucas explained that on such occasions students were asked if they would empty their bags. Mr Lucas said that on such occasions the school was on the lookout for contraband including possible weapons, drugs and “funny substances”.

28. Mr “A”, a former student at the school who was also of Arabic Druse origin, arrived at the school in 1997. He was struck by the prevailing culture of ethnic segregation of the students. This was evident at recess time when he observed the separate seating areas occupied by students whose backgrounds were variously Lebanese, Asian, Tongan, Croatian and Macedonian. He described how, in the course of the 1997 school year he recalled seeing a group of Asian men who were not a part of the school’s student population who were armed with bats and knives and who were seeking out a person of Middle Eastern background at the entrance to the school. He described how this experience scared him. He also described an episode of violence that he had experienced in 1997 when he was punched in the face by a student from a different cultural and ethnic background. This evidence was unchallenged.

29. Mr John Nagle, a barrister and former elected representative of the New South Wales state parliamentary seat of Auburn gave evidence of an awareness in the local community, which included awareness on the part of a former principal of Birrong Boy’ High School, of issues of conflict of race, culture and religion between school students in the area. He also spoke of his own awareness of major behavioural problems at the railway station in the area adjacent to the school and which was used by students of the school. Mr Nagle acknowledged that over the years a lot of good work had been undertaken by parents and school staff to try and resolve the inherent problems of cultural disharmony within the school. Mr Nagle traced this cultural disharmony to the different waves of migration into the area, initially from 1987 and then subsequently, again from 1992.

30. Mr Lucas was the principal of the school between 1995 and 2003. He was an impressive witness. He retired in 2003 and has subsequently continued in the education system as a mentor of younger teachers. He began teaching in 1971. Mr Lucas gave evidence about the running of the school during the years 1997 and 1998. He confirmed the school had a professional development programme covering a wide spectrum including occupational health and safety, discipline as well as welfare policy and procedures. A review of the evidence of Mr Lucas and the documentary exhibits relating to school governance has left me with the general impression that the school was managed in a conscientious way by dedicated teachers who did their best with the available resources at their disposal. Specifically, Mr Lucas identified the existence of a particular committee being one of a number of committees of which he was a member, which dealt with the implementation of plans to manage risk and critical incidents at the school.

31. Mr Lucas did not agree with the general proposition that at the end of 1997 and at the beginning of 1998 the school had a problem of racial disharmony but this did not mean the school was a trouble free behavioural environment. He agreed there had been instances of abuse directed at teachers, bullying between students, and occasional fights between students that required teacher intervention. He described an active policy of attempting to improve harmony between various groups within the school by arranging multicultural days on which the students would be exposed to different foods, festivities, presentations and dancing. He acknowledged that this object was not always successful, noting that on one such occasion, members of one ethnic group had mixed dog food into the ethnic dish of another group.

32. He described a 95 percent rate of adherence to the requirement that students wear the school uniform. He described the geography of the school, including a 100m to 150m perimeter fence one metre in height with an access gate on one side. There were no gates at the front entrance. The school did not have a fence around its entire perimeter. He said he could not recall an instance of anyone bringing an offensive weapon into the school prior to March 1998. He described the school as having been run on a tight budget with several areas of need competing for the expenditure of funds within its allocation and where only limited supplementary funding was available from the parent body. The relevance of this evidence concerned the state of security measures at the school. He stated that in 1998, and I infer beforehand, the school did not have the necessary funds for the building of gates and a perimeter security fence to encircle the school. Similarly, he stated the school had no funds for security cameras and personnel to monitor them nor did it have funds for a system of electronic metal detection at the point of entry to the school. These were all matters raised on behalf of the plaintiff as criticisms concerning the duty of care owed. I shall analyse these matters in due course.

33. Mr Lucas stated that one of his aims as school administrator was to make the school a safe place. He described a system of rostered staff patrols on playground duty which was obviously directed at student safety and with maintaining good discipline within the school. He stated that individual teachers were responsible for any disciplinary matters that might have arisen within the classroom, including the roll call class at the beginning of the day.

34. He acknowledged the phenomenon of disagreements occurring between ethnic groups and members of those groups within the student body of the school. In this context he noted that the teachers would always try to defuse any sort of tension that got out of hand. He acknowledged the ever-present possibility of persons from outside the school intruding into the school grounds to cause problems inside the school. He recounted one such event that occurred in 1995 when a group of persons of mixed backgrounds got off the train and rampaged through the school for 20 minutes or so creating havoc before the police arrived. This event had caused him to apply a security lock-down of the school at the time. He has remained at a loss to understand why this event occurred.

35. Mr Lucas acknowledged that at all times the school, and he as its principal, had a duty of care towards the students in the care of the school.

36. Mr Lucas was cross-examined at length, including on questions about the application of school protocols or procedures where for example, a student of the school had issued a death threat to another student in unequivocal terms and then left the school grounds without permission. The essence of Mr Lucas’ evidence on this topic was that he would have expected that a teacher witnessing such an incident would inform him or his deputy of the fact. He said the required response would have been, with some urgency, to check whether the student who had issued the threat was in class and to then interview him to gauge the seriousness of the occasion. If the student who issued the threat had truanted, he expected that the student’s records held by the school would then be consulted promptly and then visits would then be made to the nearby railway station and the student’s home to check on his whereabouts. He said a check would also be made with the parents, including if necessary, using the school’s community liaison officer in the event of language issues.

37. As to the need to provide care to the recipient of a death threat, Mr Lucas said the required procedure would have been, in pro-active terms, to ascertain whether the student who had been threatened felt unsafe and, if so, to remove him to somewhere where he felt safe. He acknowledged that he would take seriously being informed of the fact that a death threat had been made against a student and he would investigate it to try and resolve the problem from the perspectives of both the issuer and the recipient of such a threat in the hope of defusing the situation. He added that in the event of a teacher being a witness to the issuing of a death threat, he would have also expected the teacher concerned to treat such an occurrence with the utmost seriousness and ascertain how the recipient felt following such a threat. He would also have expected the teacher concerned to offer the recipient of the threat protection as well as to inform the principal or the deputy principal of the fact that the threat had been made.

38. Mr Lucas stated that in 1998 there was a supervision plan in place for playground activities within the school. He agreed that there was an applicable flowchart setting out an algorithm for handling critical incidents involving violence between students. He agreed that a death threat from one student to another was an incident that required emergency action. In the context of a death threat he said that if the student felt threatened he would have expected appropriate measures to have been taken along the lines he had outlined, including for staff to assess the threatened student’s state of shock, if any, and to isolate him from the threat and to arrange for the parents to come and collect the student.

The first incident –death threat to the plaintiff – 8.40am on 26 February 1998

39. At about 8.40am on Thursday 26 February 1998 the plaintiff, along with a number of his fellow students, was standing within a narrow corridor within a school building whilst waiting to attend a morning roll call class. The morning procedure at the school was for students to attend the roll call class before dispersing to other allocated classrooms for their first morning lesson. The roll call classes were arranged for students alphabetically and included students from various years.

40. The students were waiting for the roll call teacher, Mr “Y”, to attend and to unlock the door to the roll call classroom. Mr “Y” was a teacher of Arabic descent. He was well liked by the students because he had an informal and friendly manner. As Mr “Y” approached the roll call classroom the plaintiff felt emboldened to play what he described as an innocent practical joke on Mr “Y” by placing his own outstretched arm in a horizontal position across the corridor as if to obstruct the approach of Mr “Y”. In doing so the plaintiff innocently placed his left hand on the right shoulder of a nearby fellow student whom he mistakenly thought he knew. In response to being touched, that student, known as “G” for the purposes of these proceedings and who was a member of the Vietnamese ethnic group within the school, then became extremely and disproportionately aggressive.

41. When this event occurred there were two teachers in the nearby vicinity, namely Mr “Y” and Miss “Z”. These teachers intervened to break up the ensuing scuffle and physical altercation that occurred between “G” and the plaintiff. I find that the altercation was initiated by “G”.

42. Mr “Y” then requested the plaintiff to take his place in the roll call classroom and the plaintiff did so. The student “G” then walked into the classroom which was then quiet. He then took up a position standing about 5 metres away from the plaintiff. Whilst “G” stood looking at the plaintiff he said “You’re dead, you’re dead.”

43. Following these events, “G”, who was at that time in an agitated state, then proceeded to leave the scene and then left the school grounds despite teacher requests for him not to do so. The plaintiff described these events as follows:

“Q. Tell his Honour what transpired in that moment after you put your hand on his shoulder.
A. He turn - he immediately turned around and - and said, "Why are you touching me for?" And - and somehow the - the - the scene got - he - he got extremely aggravated, and when I mean I literally - literally just put my left hand on his shoulder. I didn't - I didn't even - no pressure, no force, no anything. It was - it was more like a boom gate just lying on his - on his shoulder, and - and he got extremely aggressive and turned at me with - with an aggressive tone of voice, "Why are touching me for?" And - and then a few words were exchanged. What was exchanged I - I really don't recall. But Mr ”Y” was - was a few metres away at the time, and Ms ”Z” was as well and they - and they sort of broke it up. And - and told - told us to stop it. But--

Q. Was there some physical involvement other than the placing of hand on shoulder?
A. There - there was - they - they ended up being a push, a - a push, but no, not at all, I only put my hand on his shoulder.

Q. Who pushed?
A. He pushed me.

Q. Who pushed?
A. He pushed me.

Q. How long did this incident, from the placing of your hand on his shoulder to the push and the ultimate break up by the teachers, take?
A. Five or 10 seconds.

Q. What then did you do?
A. The - what I done, I - I started - he was - he was extremely aggravated, so Mr ”Y” and Ms ”Z” were trying to calm him down. I continued - Mr ”Y” asked me to enter the classroom, I entered the classroom.

Q. This is the rollcall classroom?
A. This is the rollcall classroom in the Social Science area, where I walked in to the - into my seat or - it was just about three rows in from where the teacher is sitting. And the - the guy that I got into the altercation with in the morning or in - just a few minutes ago, walked - Mr ”Y” had walked in, sat down - he walked in and, basically - basically, looked at me and just said, "You're dead, you're dead", and - and left the classroom. Mr ”Y” was - Mr ”Y” was maybe 2 or 3 metres away to - to the - to the guy that I got in the altercation with, and probably about 5 metres away from the guy that I got into the altercation with, so it was like a triangular effect.

Q. Where was this fellow when he said--
A. At - at the door. He stood at the door, looked at me and said, "You're dead, you're dead", very, very clearly. It's a rollcall classroom; you're not allowed to talk. It's called "reading time". You get 15 minutes of reading time or 12 minutes of reading time, and you're not allowed to do anything else other than read or - or just remain quiet. So he's walked straight in there and - and very aggressively said it. I - I was shocked. I mean, I - I didn’t know what to do.

Q. I just want to understand from you, if I may, the distance you were from this pupil when he said the words, "You're dead, you're dead", doing the best you can to estimate it.
A. I would have been approximately 6 - 6 or - 6 metres away from the door.

Q. How far was Mr ”Y” from the pupil when you say these words were said?
A. Three and a half metres away from the door, or 3 metres away from the door.

Q. After the words were said, did you see this student do anything?
A. He didn’t enter the classroom. He - he left - well, he - he walked away.

Q. So out of view?
A. He walked out of view.”

44. I accept the plaintiff’s account of these events as he described them. The plaintiff was an impressive witness. He gave his evidence in a measured and careful manner. I felt I could confidently accept his evidence on these matters. There was no contrary evidence called from other persons who were present at the time. There was nothing within the plaintiff’s demeanour in giving his evidence on this topic which caused me to doubt his veracity. I am satisfied the plaintiff gave a truthful account of these events.

45. Following what he perceived was a threat to kill him, the plaintiff became extremely nervous and was in shock. He was scared and did not know what was going to happen next. He said he was unaccustomed to violence and to events of the kind which had just transpired.

46. The plaintiff remained in the roll call class of Mr “Y” for the required duration of that class. The plaintiff then attended the ensuing three scheduled morning lessons between 8.45am and 10.58am which was when the morning recess bell rang. At that time the plaintiff proceeded to an area within the quadrangle of the school playground that was customarily frequented by students of Arabic background.

47. In between the time of the earlier described scuffle and ensuing altercation with “G”, and the time of the morning recess, the plaintiff said he was not spoken to by any teacher or person in authority within the school hierarchy concerning the incident that had earlier occurred. He said he was not asked how he felt about what had happened in that earlier incident. I accept the plaintiff’s evidence in this regard. Furthermore, I find that had someone in authority taken the time to speak to him during this time, the plaintiff’s state of shock and his nervousness would have been apparent.

48. Following the earlier described scuffle and altercation with “G”, neither Mr “Y” nor Miss “Z” reported that incident to either the principal or his deputy before the occurrence of a second incident involving “G”, some companions of “G” and the plaintiff in the playground during the morning recess on that day.

49. As a consequence of the non-reporting of the first incident the school authorities took no special precautions directed at ensuring the plaintiff’s safety and wellbeing in relation to the threat. The nature and content of the protocol for those special precautions were along the lines described in the evidence of Mr Lucas. Neither Mr “Y” nor Miss “Z” were called to give evidence notwithstanding that they were respectively present when the scuffle took place and when the death threat occurred. Mr Lucas stated that he was aware at the time of the trial that Mr “Y” and Miss “Z” were still teaching in NSW.

50. Mr Lucas said that he had not been told of the occurrence of this first incident until after the plaintiff had been stabbed. He agreed that if he had known of the terms and circumstances of the death threat “G” had made to the plaintiff and had he known that “G” had left the school grounds without permission, amongst other things, he would have told the supervisory staff to be on notice to keep a look out for “G” in view of that threat. I accept the evidence given by Mr Lucas in this regard.

The second incident – assault and stabbing of plaintiff – 11.00am on 26 February 1998

Plaintiff’s description of the events of the attack upon him

51. At the 11.00am recess on that day, 26 February 1998, the plaintiff was in the school playground and was seated on a metal bench seat near a staircase in the area that was commonly frequented by his fellow students who were of Arabic background. The plaintiff had walked down the staircase and had approached the metal bench seat whereupon he sat down. Earlier, on his approach to the bench the plaintiff saw a teacher, Mr “J”, approximately 50 or 60 metres away. When the plaintiff sat down Mr “J” was standing at a distance of about 20 to 30 metres away on playground supervisory duties. The inference I draw from this evidence is that Mr “J” was not performing his supervisory duties in a static or observational manner but was moving about the playground. During this time, whilst the plaintiff was seated he heard one of his compatriots say something in Arabic which the plaintiff translated into English as “Here come the rice”. In the context of the evidence, I infer that reference to have been a derogatory code which was intended to refer to the approach of a number of Asian people.

52. When the plaintiff was alerted by the expression “Here come the rice” he looked up and saw “G” and three other Asian people walking very fast and directly towards the place where he was seated. When the plaintiff first saw these persons they were some 30 metres away and they were walking from the direction of the library. At this time the plaintiff noticed that the teacher, Mr “J”, who was present nearby on playground duty, was standing in the same place where the plaintiff had first seen him earlier.

53. The plaintiff was then approached by “G” who asked him whether he wanted to fight. The plaintiff was then attacked by “G” and his three companions. I set out the portion of the plaintiff’s evidence in relation to the occurrence of this second incident which he described in the following terms:

“A. The guy from roll call came up to me and approached - approached me very aggressively, basically saying - basically walked up to me and said, “Do you want to fight now” or something along those lines.

Q. Did you respond to that?
A. I don’t - I can’t recall.

Q. What happened next?
A. He then - he then started - him and the three other guys that were with him started attacking me, started punching me and kicking me. I tried to - I tried to push them off or I tried to push one or two off before - before I fell over the - before I fell over right near the steel - right near the aluminium staircase.

Q. So a staircase?
A. Sorry, the aluminium seating that was - that was directly outside the English staffroom and I fell to the ground and they started kicking me to the head while a couple of them were punching me to the body or I don't know who was punching me where or what was happening, I was on the ground for a while. And all I remember is just hoping that - hoping that someone would come and sort of stop it and it just - it just dragged on and on and they just continued to punch me and kick me, I don't know how long it went for or what--

Q. Were you on the ground when this was happening?
A. I was - I was on the ground, I couldn’t get up because they were all over me and just kicking me and I couldn’t - I couldn’t - I couldn’t stop them from doing it so - so I was just hoping for someone to come and sort of - someone to come and stop it.

Q. Are you able to say how long it went for, this--

PARKER: I object.

HIS HONOUR: How long what went for?

HUGHES

Q. This transaction whereby you were being kicked and punched by this group of men?

PARKER: The witness already said he doesn’t know how long it was.

HIS HONOUR: He said it went on for a while.

HUGHES

Q. Are you able to--
A. Just can I answer it?

Q. Yes.

HIS HONOUR

Q. Yes, answer the question.
A. I don’t know - I don't know how long but it went on for - it felt like it went on for a while, it did, it fell like - I wanted it to end and I was just trying to get up and trying to get out of - out of being repetitively kicked and punched but I don’t - I don't know how long it went for. I couldn’t tell you but it was a while.

HUGHES

Q. Did you eventually resume your feet?
A. Yes, I did.

Q. Now when that happened, would you tell his Honour what happened to these men, if you’re able to say?
A. These - these men stepped - these guys stepped back slightly and - and looked straight at me and just basically said, “Don’t fuck with the Vietnamese”. And at that time I remember Mr “J” now being next to me and the guys - the guys started withdrawing, walking away or moving away pretty quickly.

Q. Did you hear at all in the course of this transaction whereby you were being kicked and punched as you’ve described it, Mr “J” ’s voice?
A. I don’t recall - I don’t recall hearing anything other than being kicked to the head and I don’t recall Mr “J” at all being around at all until - until I was up on my feet.

Q. When he arrived on the scene, were you being assisted by anyone else?
A. There was a few students at the time that were - that were helping me up and I don’t know who those students were but there were a few people around me at the time trying to help me stand up.”

54. I accept the plaintiff’s account of these events which he outlined in the foregoing quoted passages of his evidence.

55. The teacher Mr “J” arrived at the plaintiff’s side just as “G” finished saying to the plaintiff “Don’t fuck with the Vietnamese”.

56. In addition to recognising “G” at that time, the plaintiff also recognised one of his assailants as a former Year 12 student at the school. After the assault and stabbing of the plaintiff the four assailants left the scene. This coincided with the arrival of Mr “J” in the immediate vicinity. When the plaintiff was helped to his feet he felt unwell. He described his feeling at that time in the following terms:

“It – it wasn’t a good feeling. It wasn’t a good feeling. It was a – very painful feeling.”

57. When he was standing, the plaintiff noticed that he had blood on his clothing and he then realised that he had been stabbed. After Mr “J” saw the blood on the plaintiff’s clothing he told the plaintiff to walk to the sick bay. The plaintiff was then accompanied to the sick bay by two other students. On the way to the sick bay the plaintiff was in a lot of pain. He found it extremely difficult to breathe, he thought he was going to die, he was struggling to breathe, he was nervous and he was shaking.

58. When he arrived at the sick bay he was told to wait for the ambulance. Whilst he was waiting he was extremely nervous and panicky because, in addition to feeling he may die, he was also concerned about the possible return of his assailants. He described his experience whilst at the sick bay in the following terms:

“Q. What happened when you got in there?
A. I - they - they had a look at the wounds and - and I - I started finding it extremely hard to breath (sic). They said - they told me to wait a bit, the ambulance is on their way, and I was - I was in a very panicky mode because I didn't know where these guys were and I didn't know if that - if they - if they were still coming back to - to get me or not so I was - I was extremely nervous at the time and - and literally - I literally thought I was going to die. It was - it was an awful experience.”

59. I accept the plaintiff’s account of how he felt in the aftermath of the stabbing incident.

Description of the attack provided by the teacher Mr “J”

60. The evidence disclosed that the teacher Mr “J” was medically unfit to give evidence at the hearing. On 2 March 1998 he had given a statement to the police concerning the incident. Subsequently Mr “J” gave another statement to an investigator who was representing the interests of the school. That second statement was dated 18 September 2003, some 5 and-a-half years after the event. The plaintiff sought to tender both statements. Surprisingly for the circumstances, especially since that further statement referred to the fact that Mr “J” had given an earlier statement to the police, counsel for the defendant objected to the initial statement that Mr “J” had provided to the police. Both statements were admitted into evidence as Exs “V” and “W” respectively.

61. Even making allowances for the adversarial context of these proceedings, having regard to the interests of justice between the parties, given that the defendant is a model litigant, it was surprising that the first of the statements by Mr “J” was objected to by counsel appearing on behalf of the school given that the school had a duty of care to a minor in its charge. This is of particular significance in light of the unavailability of Mr “J” to give evidence in the proceedings due to his medical condition.

62. These two separate statements contained some dissimilarities in their factual descriptions. The variations in the factual descriptions in these two statements are unsurprising testaments to the fallibility of human memory when called upon to recall matters of historical detail.

63. The teacher Mr “J” was rostered to perform playground duties at the time of the 11.00am recess. His duty was to patrol Area 3 which was near the English teachers’ staff room and the opposite side of the quadrangle where the toilets were located.

64. When the 11.00am recess bell rang Mr “J” proceeded to walk from the staff room towards Area 3. As he passed through the doorway entrance to Area 3 he saw what he described in his first statement as “a large gathering of students” in the quadrangle “… mainly of Middle Eastern nationality”. In his second statement he stated that as he commenced to patrol that part of Area 3 which was in front of the toilet blocks he “… saw a cluster of students as usual in the toilet area”.

65. In his first statement Mr “J” described seeing the plaintiff standing close to the wall of the English teachers’ staff room and engaged in an apparent fight. This was a conclusion he had reached from observing the plaintiff’s arms in the air whilst the plaintiff was apparently exhibiting an angry demeanour. In his second statement Mr “J” stated that he saw students moving forward towards the wall of the staff common room.

66. In his first statement Mr “J” stated that because he thought something was wrong he walked over to the area where the plaintiff and a crowd of approximately 25 students had gathered. At that time he could only see the tops of the heads of the students as they had gathered around the plaintiff. In contrast to this account, in his second statement Mr “J” stated “I immediately ran over towards the gathering of students”.

67. In his first statement Mr “J” stated that he saw the plaintiff drop to the ground as he was walking over to him at which point Mr “J” said he had yelled out “Hey, what’s happening?” In his second statement he also stated that he was yelling out to try and distract the students as he was running over towards the gathering that was taking place.

68. In his first statement he described seeing an Asian male whom he thought was not a student of the school running away from the crowd towards the toilet/library exit. In his second statement he described two attackers of Asian appearance dressed similarly to the school uniform and running away around the toilet block.

69. In his first statement Mr “J” stated that he had observed the plaintiff being helped to his feet by some fellow students. In his second statement he said he saw the plaintiff come out of the crowd supported by two fellow students.

70. In both of his statements Mr “J” described his observation that the plaintiff had blood stains on his shirt. In the first statement he described the blood stain as being under the right armpit. In the second statement he described bleeding from the side of the chest with blood on the elbow.

71. In his first statement Mr “J” said he told the students who were helping the plaintiff that they should take the plaintiff “… to the front office for medical treatment”. In his second statement he stated “I asked some students to assist “H” to the front office for the office staff to dress his wounds and provide any medical assistance required.”

72. In his first statement Mr “J” stated that due to the serious nature of incident he had yelled out to another teacher who was in the English teachers’ staff room to contact the front office for help. In his second statement Mr “J” said that another teacher arrived and Mr “J” asked him to get some help from the deputy principal.

73. An incident report was filled out by Mr “J” on the day of the incident. That report included the following account:

“ Other Students Involved

Some Asian (outsiders I believe),

Nature Of Incident

Fighting

Report

When I walked into Area 3 from the building I saw a gathering against Staff Common room. Also I could see “H” was engaged in fighting with another guy. I shouted at them to stop fighting and was approaching to them. Then I saw “H” was pushed against the wall and a couple of asian guys were running around the toilet block. When I went closer to “H”, I saw him bleeding from side of his chest and blood on his elbows. I told Mr (name of another teacher) to get some help from the DP by phoning. Also asked “H” to move to the front office for dressing and for any medical help. In the mean time I heard someone say he was stabbed. I called (name of a student) who was near the scene and asked him ‘what happened’ he said ‘he was stabbed’. “H” knows the person’. I repeated the same question to name of another student) who also said that ‘“H” was stabbed’. But he does not know who was it (sic).”

74. The foregoing events of this second incident which sequentially comprised the challenge issued to the plaintiff by “G” to fight, the physical blows to the plaintiff when he was struck, the stabbing of the plaintiff, the plaintiff’s subsequent breathing difficulties, feelings of panic and fear of death in the aftermath of these events were undoubtedly extremely distressing to the plaintiff and I accept that this was so.

Ambulance attendance, initial notation of injuries and trip to hospital

75. An ambulance was called to take the plaintiff to Bankstown Hospital. The ambulance arrived at 11.20am and it was noted that the plaintiff was laying on his left side on a bed. The ambulance report stated the plaintiff’s chief complaint to be a possible knife wound to the chest. The history stated to have been obtained from the plaintiff was that he was attacked, possibly by a small knife on a key ring. On examination it was noted that he had three lacerations to the right lateral chest wall, a laceration to the left elbow and an abrasion to the left forehead. Decreased breath sounds were also noted. A back-up ambulance was called to assist. It was noted that the plaintiff had a pneumothorax.

76. The plaintiff recounted how during the ambulance journey to hospital he could hardly breathe, he was extremely scared and nervous about what was going to happen to him. He said he was in and out of consciousness and was aware that during the journey he had been moved out of one ambulance and into another back-up ambulance before he arrived at Bankstown Hospital. I accept his account of these events.

Hospital survey of injuries, treatment and events at Bankstown Hospital

77. The plaintiff was treated at Bankstown Hospital Emergency Department. On arrival at 12.10pm it was noted that he had a stabbing wound to the right side of his chest below the axilla about 1cm wide and 2cm deep. It was also noted that the plaintiff had been kicked in the face and had an 8mm nick type laceration to the left elbow. The hospital notes are difficult to read but they also identify a notation of a laceration over the anterior border of the latissimus dorsi muscles. A chest x-ray revealed a 20 percent right pneumothorax which was treated by the insertion of an intercostal drainage tube. The plaintiff remained in hospital until the morning of 28 February 1998 at which time he was discharged home.

78. The hospital notes record that at about 0130 hours on 27 February 1998 an incident occurred involving intruders in the hospital ward where the plaintiff was located. The nursing sister on duty called the hospital security officers in relation to that incident. She filled out an incident report in the following terms:

“2 males entered ward – passed nursing station – did not reply to staffs queries continued and opened door to pats room 2. asked to leave area – escorted down hallway – raised arm with clenched fist at me as leaving area and door was being closed. Patient in room had been assaulted previous day. These males would not identify themselves or speak therefore making themselves suspicious to me of their intent.”

79. Objection was taken to the tender of the portion of the Bankstown Hospital notes containing the above note. That note was in similar terms to another note of the same incident which was also recorded in the progress notes. The basis of the objection was said to be relevance as the incident occurred whilst the plaintiff was asleep. If that objection were valid, then by analogy any operation note or anaesthetic record in a personal injury case ought to be inadmissible due to the patient’s unconsciousness, so the argument goes. I consider the continuous record of care given to the plaintiff, as contained within the hospital notes, to be relevant to the plaintiff’s treatment. Such records also constitute a business record thus rendering the notes to be admissible. I overruled the objection and admitted the records into evidence as Ex “AN”. However, after a consideration of the whole of the evidence, given that the plaintiff was unaware of the events that occurred at the hospital when he was asleep, and given that the matters objected to in the note were not directly linked to other relevant evidence, this aspect of the notes ultimately played no part in my assessment of the liability or damages issues.

Plaintiff’s recuperation at home

80. Following his discharge from hospital the plaintiff remained at home for eight days before returning to school. In his evidence referring to that time, the plaintiff described his feelings of being trapped in a room, being isolated from the family, having severe nightmares and sweating every night. It seemed to him that the events of the assault were being re-enacted, but worse. His parents and family tried to assist him to take his mind off such thoughts but this approach was unsuccessful. In those early days the plaintiff found difficulty in coping with being around other people, trusting other people, being alone at home and being alone in his room at home. He found he was unable to relax. He sought help from his family general practitioner, Dr Kanawati.

Plaintiff’s return to school for one day

81. The plaintiff described his return to school 8 days after his discharge from hospital. The plaintiff said that at the morning roll call class on the day of his return he became apprehensive that he would be attacked again and ran to the principal’s office. He said that from the principal’s office he was able to see a group of Asian males at the railway station. Based on something he had been told earlier, his perception was that he thought these persons were there waiting for him. He said he feared for his life. He was very frightened and agitated. He felt he did not want to go near that school ever again. The plaintiff said Mr Lucas drove him home. Mr Lucas said the plaintiff was driven home by the deputy principal. In my view nothing material turns on this minor discrepancy in recollections as to who drove the plaintiff home that day.

82. The plaintiff never returned to the school after that day. It was obvious from this event, and the plaintiff’s manner in describing the event, that the plaintiff had developed a sensitisation and phobia to being in the presence of Asian people, especially young Asian males.

83. Instead of returning to school the plaintiff initially sought some treatment and then in mid-1998 he went to stay with an uncle in Lebanon. He gave the following evidence on this topic:

“Q. We arrived at a point where you, before the luncheon adjournment where you’ve given evidence about having been driven home by the principal, Mr Lucas, back to your mother’s house and I think you said you never went back to school after that. Did you in about the middle of 1998 travel overseas?
A. Yes, I did. There was a lot of - a lot of strain within the family, I wasn’t leaving the house. I was basically stuck, I was stuck at home, I didn’t want to - I didn’t want to go - I didn’t want to leave the house, I was extremely nervous, having excessive nightmares and my parents were just slightly concerned about me. After getting some medical assistance they - they recommended that I flew over to Lebanon and stayed with one of my uncles where I wouldn’t - I would try to settle down and get a bit better out there.

Q. Do you remember when in 1998 it was that you went to Lebanon?
A. Halfway through the year, around halfway through the year.

Q. Between your last day at school, about eight days or so after you discharged from hospital and your leaving for Lebanon, would you tell his Honour how you were feeling and what you were noticing about yourself?
A. Your Honour, I was - I was basically - I was basically struggling with - with the injuries that had occurred physically and emotionally, I was - I was having excessive nightmares, I wasn’t sleeping, pretty much I was sleeping probably half an hour, I wasn’t sleeping at all. It felt like I wasn’t sleeping at all. I was having panic attacks probably three or four times a day at the time. And I didn’t want to leave the house. I wasn’t eating too well and I was really trying to push a runaway in the family, so it was an extremely - it was an extremely tough time for me. I think I was scared, I just - I was scared of everyone at the time and I didn’t trust anyone, I lost trust - trust in society and that was it, I just wanted to isolate myself and stay away from everyone, so I was causing a lot of problems within the family.”

84. I accept the plaintiff’s account of his feelings at the time of these foregoing events and I accept his reaction of wanting to secrete himself away from relevant stressors and in a suitable sanctuary as a reasonable one in the circumstances.

85. The plaintiff travelled to Lebanon with his father in mid 1998. He stayed there on his uncle’s farm in the mountains. There were no Asian people there and he found it easier to cope with his emotional problems that followed the stabbing incident. He traced his phobia concerning Asians to the time he saw the group of Asian males at the railway station when he was in the principal’s office on the day he last attended school. In my view the plaintiff had already been primed for this phobic reaction by the attack to which he had been subjected on 26 February 1998 and the fact that this reaction occurred when he returned to school was not an unexpected occurrence. The plaintiff said, and I accept, that he had nothing against Asian people and he was not racially motivated.

Commentary by principal concerning the attack on the plaintiff

86. After the stabbing incident Mr Lucas undertook some investigation of the first incident comprising the scuffle in the corridor and the death threat in the roll classroom. Mr Lucas prepared an incident report on the same day the plaintiff was attacked. He said that Mr Smith, the deputy principal, took a statement from Miss “Z”. There was no explanation as to why the incident report did not refer to the death threat. I find the incident report tends to underplay the seriousness of the events it described because it omitted any reference to the death threat to the plaintiff in the first instance. The absence of evidence from Mr Smith means that the reason for this could not be explored in the evidence. Relevantly, the report stated:

“Minor altercation between “G”, Year 11, and “H”, Year 11, during roll-call. Teacher, Ms ”Z”, attempted to calm the situation but “G” walked off. “G” left the school premises without permission, went to railway station and phoned a friend. Friend arrived and then “G” went with him. At recess three outsiders (one an ex-student “X”) and two outsiders approached “H”. There was a verbal, then physical exchange between “H” and one of the other boys. “H” was stabbed on elbow and in the back (x3 times). Mr “J” was on playground duty and ran to the incident. The three outsiders ran off and got into a blue car in Cooper Road.”

87. On the following day Mr Lucas suspended “G” for “leaving the school grounds without permission despite two previous warnings; contacting ‘outsiders’ who entered the school and assault of another student with a weapon causing extensive injuries.”

88. In a subsequent confidential memorandum addressed to the staff Mr Lucas said he feared that inevitable payback may occur. He confirmed that there was a heightened response to the stabbing incident. There was obviously an apprehension within the atmosphere of the school that inter-ethnic reprisals or payback activity may occur.

89. On 4 March 1998 the minutes of the executive meeting summed up the aftermath of the incident in the following minuted note:

““H” incident – thanks to staff for cooperation. “H”’s injuries could have been worse and will recover fully. Police active in investigation. Good to see staff were on playground duty at time. Other boy involved in incident has been given a long suspension and it is unlikely to return. “H” may return to Lebanon”

Earlier history of concerns over student safety issues at the school

90. On 10 February 1994, two years before the incident in question, a meeting of high school principals and police chiefs met under the chairmanship of Mr Nagle MP. The meeting expressed concerns about violence and harassment experienced by school students whilst travelling to and from school. The then principal of Birrong Boys’ High School was amongst those in attendance. A further meeting was planned, including the convening of a student forum.

91. Subsequently, the foreshadowed student forum was held at Birrong Boys’ High School on 25 March 1994. Seven schools from the area were represented, namely, Bankstown Girls’ High School, Bankstown Grammar, Benedict’s Senior College, Birrong Boys’ High School, Birrong Girls’ High School, Punchbowl Boys’ High School and St John’s Auburn. A minute of the matters discussed was prepared by someone in authority at the school and which summarised the topics discussed as follows:

“ Summary of Discussion Topics

Barriers exist between races, cultures, religions and values. People often do not look beyond their own nationality and therefore there are great misunderstandings and prejudices. Verbal abuse and harassment are common, especially out of school. Provocation and sometimes revenge exist. Conflict that takes place out of school usually begins at school. Trouble sometimes starts when people congregate in groups and therefore feel stronger. This is a form of peer pressure. There is a degree of racial conflict between some students and teaches (in some schools).

Some ways of preventing conflict include:
- more understanding between races and cultures
- mix different nationalities together
- more student and inter school interactions
- talk to school leaders and friends
- ignore the taunts
- more education in school, especially about other cultures
- multicultural events such as international days
- strong discipline and punishment although prevention si better than cures
- training in conflict resolution skills such as talking, listening and negotiating

…

The forum was successful because it gave everyone an opportunity to share experiences and ideas and suggest some solutions.
The next forum could be held with police representatives. The Principal of Birrong Boys High School invited another school to host the next forum.”

92. Exhibit “AM” demonstrated that in 1997 and 1998, and I infer from its contents, beforehand, the school had regular executive meetings. Selected portions of Ex “AM” demonstrate that these meetings occurred weekly at which time various items of concern were placed on an agenda for discussion. These items included matters of student conduct and discipline. It is common ground that before the occurrence of the events which give rise to this claim, other than on two occasions of having left school without permission, there is no evidence that the student “G”, who had confronted, threatened and later stabbed the plaintiff, was on the school’s radar of concern as to his behaviour at school. There is no record in the evidence of “G” causing concern over absences or for flouting school discipline other than on the occasions to which I have referred. There are recorded instances of such concerns being noted regarding other students and pre-dating the stabbing of the plaintiff. Examples of such instances within Ex “AM” appear at pages 26E-G; 27R-T; 29T-U; 31Q-T; 33G-J; 37W-X; 39F; 39R; 40V; 41B-C; 42Q-S; 44R-S; 46M-N; 49R-V; 51E-F; 51N & P and 52O-R. It is not relevant to review similar instances that were recorded after the stabbing.

Pre-incident evolution of plan to deal with disciplinary problems at the school

93. Exhibit “AM” contains references to the evolution of a plan for the management of challenging behaviours by school students. The minutes of the executive meeting on 27 August 1997 record that the deputy principal visited Canterbury High School and reported on the use there of the “Time Out Room”. The minutes refer to the visit as a major topic of policy development activity, namely to review that school’s welfare policy in the context of that school having some 548 students and having had experience of racial conflict and violence posing major problems for that school which led to the development of the welfare policy and the “Time Out” system. A flowchart for the operation of the policy was included in the minutes : Ex “AM”, page 27M-N; page 28B-L.

94. The minutes of the 30 September 1997 executive meeting show that the flowchart was developed and would be laminated and posted on walls to show expectations and consequences for behavioural issues. The minutes also show that the concept of an “isolation room” gained general approval and would be presented to staff at the next meeting : Ex “AM”, page 29V-W; page 30A-B. The minutes of the 10 September 1997 executive meeting note that the forms to be used to implement the new system would be ready the following week : Ex “AM” page 31S-T. The minutes of the 17 September 1997 executive meeting concerning the implementation of the new discipline policy attracted 31 votes in favour and one against. The notes show the process was still being refined : Ex “AM” page 32F-I.

95. The minutes of the 24 September 1997 executive meeting shows that there was a taskforce meeting held with one teacher representative from each faculty within the school : Ex “AM” page 35B. On 5 October 1997 it was noted that training days were being planned for implementing the system : Ex “AM” page 36P, and active work was in progress for implementation of the policy : Ex “AM” page 38B.

96. Subsequent minutes of the 22 October 1997 meeting show development discussions continued with plans to explain the new rules to the student body in roll call classes in the coming two weeks : Ex “AM” page 39T-U. Five training sessions were then planned for the teachers off site between 18 November 1997 and 27 November 1997 : Ex “AM” page 40S-T. On 29 October 1997 a sheet which I infer to have contained implementation steps was distributed amongst the staff : Ex “AM” page 41D-E. The minutes of 19 November 1997 indicate that training was underway and was going well : Ex “AM” page 42M-N. The minutes of 26 November 1997 record that the training of teachers in the welfare policy was successful and positive : Ex “AM” page 44Q. The minutes of the meeting of 3 December 1997 show that the welfare policy training programme Stage 1 was completed successfully and would be re-visited on day 1 in the new year 1998 : Ex “AM” page 46N-O.

97. The first executive meeting in the new school year took place on 27 January 1998. The minutes of that meeting do not record any activity concerning the implementation of the welfare policy at that time : Ex “AM” page 47. However the minutes for the following meeting that took place on 4 February 1998, some 22 days before the plaintiff’s injury, shows that the policy was by then ready to be put into operation:

“ Timeout Desk/Welfare System
Students : If sent to isolation desks, students must then have a plan finished/negotiated. They cannot be let off with a warning.
Timeout plan negotiated should last approx 10 weeks. If a similar offence occurs within 10 weeks, next step. If not, restart on Step 1, green plan with classroom teacher.”

98. The minutes of the meeting on 18 February 1998, some 8 days before the plaintiff’s injury, shows that the system was by then ready for use, with a “Green room” and a teacher roster allocated : Ex “AM” page 51N-P. The minutes of the executive meeting of 25 February 1998, the day before the plaintiff’s injury, shows the recently adopted welfare policy system was working and at that time it was noted that 5 boys had already been placed in the green room : Ex “AM” page 52O-R.

Pre-incident welfare policy in place at Birrong Boys’ High School on 26 February 1998

99. Exhibit “7” and Ex “1” comprised the 2001 Edition of the Welfare Policy and Procedures manual which was stated to be essentially the same as the earlier edition that was in force at Birrong Boys’ High School as at 26 February 1998. From the foregoing summary it is apparent that this manual had been in force at the school since late 1997. Accordingly, I infer from the preceding chronology of events that on the morning of 26 February 1998 both Mr “Y” and Miss “Z” were aware of the workings of and indications for implementing the disciplinary provisions of that policy. The policy was designed to benefit students, teachers and parents. Relevantly, the policy document acknowledged, amongst other things, the reasonable expectation of students to:

· feel safe and free from danger;
· be helped by staff where necessary;
· have an environment free of weapons;
· be free from physical harassment;
· have an environment free of violence;
· have problems mediated.

100. These exhibits also acknowledged, amongst other things, the expectation of the parents of children at the school for:

· their children to be safe at school;
· their children to be free from physical and verbal harassment;
· an environment free of weapons;
· to have all issues mediated peacefully;
· their children to attend a non-violent school;
· to be involved in the resolution of issues when required.

101. These exhibits also provided acknowledgment of the expectation of the staff at the school to, amongst other things, be able to offer solutions to problems. They also rehearsed the school rules which included the mutual obligations of students to respect each other, to move and behave in a safe way and to resolve problems peacefully.

102. Of particular significance was a discipline flowchart within the exhibits which addressed the manner in which teachers were required to deal with disruptive behaviour in the classroom. The flowchart provided for a series of five graduated and sequential steps for intervention commencing with a challenge to the behaviour by the statement “What are you doing? Is it against the rules?” In the event of an absence of a response or in the face of defiance the flowchart steps required that the teacher say “This is what I saw you doing and it is against the rules”. In the event of continued disruptive behaviour the teacher was required to have the student placed at the “time out” desk and to record the incident whereupon other events would be set in train. It is not necessary for present purposes to review the content of the remainder of the flowchart because it refers to circumstances and consequences that are beyond the factual time frame of the events under consideration in this case.

103. I consider that the welfare policy and the discipline flowchart as a whole, including the concepts behind it, represented a clearly thought out, well considered, readily understood, flexible and appropriate array of responses to the range of problems that teachers could reasonably anticipate would occur at school. It was clearly responsive to the times and circumstances that prevailed at the school and was aimed at assisting teachers in the discharge of the duty of care owed to students at the school.

Pre-incident general awareness of school authorities to the issue of violence in schools

104. A number of documents were tendered by the plaintiff with the aim of showing that in the relevant period, school authorities were generally aware of the problem of violence occurring in schools.

105. Exhibit “P” consisted of a departmental policy directive dated 21 September 1987 in the form of a memorandum to principals from the Department of Education. It dealt with departmental policy on the supervision of students and the responsibility of teachers. In particular, and relevant to the duty of care owed to students, this document stated:

“The Department and its teachers owe a duty of care to students to protect them against the risk of foreseeable injury. The duty arises whenever the teacher / student relationship is in existence and some form of supervision is provided.”

106. Exhibit “T” consisted of a memorandum to school principals from the Department of Education and is dated 22 May 1998. Attached to it were the terms of settlement of a dispute between the Department of Education and the NSW Teacher’s Federation concerning, amongst other things, the nature and content of the duty of care owed to school students by teachers. Although it is dated May 1998 it obviously applied to issues of currency and concern at the times of the plaintiff’s injury. It conveniently restated and provided insight into the applicable nature and content of the duty of care owed in this instance, mainly:

Claim for loss of earning capacity between ages 33 years and 55 years

491. Although I have found that the plaintiff will work in Australia after he returns and takes a year out of the workforce to seek treatment this does not mean that in the years between his re-entry into the workforce in Australia at age 33 and his early retirement that he will not incur a loss of earning capacity productive of financial loss in that period.

492. Whilst the incidence of the plaintiff’s future financial loss may be difficult to predict, I consider that it must nevertheless be considered to be real. I consider that I must give effect to the evidence that the plaintiff’s condition is difficult to treat, it is chronic with a poor prognosis and he will remain vulnerable to recurrent episodes of flare-ups and decompensating debilitating psychological illness. This may occur in reaction to exposure to stressors or may simply occur due to inability to maintain control of his PTSD symptoms on a constantly effective basis. In my view it is highly probable that this will be productive of financial loss in the plaintiff. I think that the probability is so high that only a modest discount of 10 percent for downward adjustment is warranted in this case to reflect the possibility that the predicted events may not occur : s 13(2) of the Act and see Wynn v Ministerial Corporation [1995] 184 CLR 485. Not all vicissitudes are adverse and I have to take into account that the plaintiff’s prospect but for his injury might have been much more financially advantageous to him.

493. In my view these circumstances outlined in the preceding paragraph most likely represent the plaintiff’s future circumstances and as such I consider that a substantial economic buffer is required to compensate him for the loss of earning capacity that I find is likely to impact on the plaintiff between the ages of 33 years and 55 years. In my view this reduction to the plaintiff’s earning capacity represents an impairment of about 25 percent of the earnings that he could derive if uninjured.

494. I consider that an appropriate buffer to compensate the plaintiff for this component of his future loss of earning capacity would be an amount of $140,000.

495. I test the reasonableness of this sum by identifying $300 per week net as an average weekly loss, being a little under 25 percent of the plaintiff’s probable net potential earnings and then projecting this over the 22 years between ages 33 years and 55 years and deferring this sum for 6 years and then applying an adjustment reduction of 10 percent ($300 x 703.8 x 0.746 – 10%) to yield $141,759 and rounding this off to $140,000.

Claim for loss of earning capacity between ages 55 years and 67 years

496. Consistent with my finding that the plaintiff will find it necessary to retire early at age 55 this gives rise to the need to estimate his loss of earning capacity over the 12 year period between ages 55 years and 67 years : s 13(2) of the Act.

497. In my view this component of the plaintiff’s claim requires an assessment of something more finite than an economic buffer in the light of the compelling medical evidence I have accepted concerning the plaintiff’s early retirement at age 55 years when he will no longer be able to maintain his coping ability because of likely burn-out, psychological decompensation or just plain exhaustion from the toll of years of coping under the difficulties of chronic and incurable PTSD. I find that at age 55 years the plaintiff’s most likely circumstances will be that he will be compelled to retire from the workforce and at that time he will suffer a total loss of earning capacity without any remaining residual capacity and this requires an assessment by way of damages for future loss of earning capacity : Penrith City Council v Parks [2004] NSWCA 201.

498. In respect of this period the appropriate percentage adjustment of 15 percent on account of vicissitudes would be appropriate : s 13(2) of the Act.

499. On the foregoing assumptions for this component of the loss, the sum of $1,326.73 per week net projected over 12 years between ages 55 years and 67 years at 5 percent and deferred for 28 years and then discounted for conventional vicissitudes of 15 percent ($1,326.73 x 473.9 x 0.255 – 15%) yields the sum of $136,278 which I round down to $136,000.

500. In summary I have found that the plaintiff is entitled to damages for future loss of earning capacity in the following discounted elements:

(a) Whilst in Dubai;	$5,000
(b) First year following return from Dubai;	$45,000
(c) Between ages 33 years and 55 years;	$140,000
(d) Between ages 55 years and 67 years;	$136,000
Total	$326,000

501. I therefore assess the plaintiff’s damages for future loss of earning capacity in the rounded off sum of $326,000.

Past loss of superannuation

502. Although the plaintiff lives in Dubai, the loss of superannuation benefits that relate to his Australian earnings have to be assessed as they arise pursuant to statute : Zoram Enterprises Pty Ltd v Zabow [2007] NSWCA 106 per Basten JA at [54] to [67]. The value of past loss of employer funded superannuation contributions can be identified by employing a rule of thumb calculation by applying a factor of 11 percent to past loss of earnings to reflect the value of past superannuation losses : Ghunaim v Bart [2004] NSWCA 28. Accordingly, having the assessed value of the plaintiff’s claim for past net loss of earnings in the amount of $2,800, and applying a factor of 11 percent to represent the value of superannuation contributions, I assess the value of the plaintiff’s past employer funded superannuation losses to be in the sum of $308.

Future loss of superannuation

503. Consistent with my assessment of the value of lost past employer funded superannuation benefits I find the plaintiff has lost the value of future employer funded superannuation benefits which calls for a monetary assessment of that loss. Given that I have assessed the plaintiff’s future loss of earning capacity at common law in the sum of $326,000, applying the same method of calculation employed to assess the loss of past superannuation, namely a factor of 11 percent, I assess the value of the plaintiff’s future employer funded superannuation losses to be in the sum of $35,860.

Future treatment

Submissions on future treatment

504. The plaintiff claims a projected sum for future treatment expenses in the submitted sum of $32,536 which comprises the following elements:

(a) Future general practitioner consultations;	$5,032
(b) Future psychiatric consultations;	$5,145
(c) Future buffer for intermittent psychological counselling sessions;	$5,000
(d) Future pharmaceutical expenses for Panadeine tablets;	$8,554
(e) Future pharmaceutical expenses for Arapax tablets;	$8,805
Total	$32,536

505. The defendant submits that:

(a) There is no evidence to support the claim for treatment by a general practitioner;

(b) There is no evidence to support the claim that the plaintiff will need treatment from both a psychiatrist and a psychologist;

(c) The figures put forward by the plaintiff have not been discounted.

506. The defendant made no direct reference to the plaintiff’s claim for pharmaceutical expenses but I have assumed that the defendant’s submission (c) covers that aspect of the plaintiff’s claim as well.

Findings on the need for future treatment

507. I find that the plaintiff is going to require future treatment for his PTSD and related phobias and he is therefore entitled to damages for future treatment expenses. I consider it highly likely, and indeed necessary, that he will incur these expenses with regard to several treatment modalities and in several ways in order to palliate and mitigate the deleterious effects on him of his psychological problems.

508. I find that the plaintiff will need some form of treatment from time to time whilst he remains in Dubai. I also find that he will need more intensive treatment when he eventually returns to live and work in Australia.

509. In my view there is evidence to support the claim for treatment by a general practitioner. First, there is the fact that the plaintiff has in the past seen a general practitioner for PTSD related problems and as a consequence he has been referred for specialist treatment. Secondly, the plaintiff is clearly in need of specialist treatment and this is commonly achieved by referral from a general practitioner. Thirdly, having regard to the fact that the plaintiff has a deeply entrenched psychological problem with attendant vulnerability to flare-ups and depression with all the deleterious consequences that could flow from this, it would be unreasonable not to include in his damages an allowance for the support, consideration and treatment of his problems by a general practitioner. I therefore find that the plaintiff’s claim for treatment from a general practitioner is warranted.

510. On the issue of whether or not the plaintiff should receive damages to meet the cost of treatment from a psychiatrist and a clinical psychologist, it is relevant to shortly review the evidence concerning the need for treatment of his psychological problems.

511. Dr Brown conceded that the plaintiff has unmet treatment needs which include exposure desensitisation therapy. Dr Roberts thought it appropriate to refer the plaintiff to a psychologist for treatment of his symptoms. Dr Brown recommended a re-trial of the medication previously prescribed by Dr Takas along with psychological treatment of a kind that she did not specify. Ms Perlmutter thought that the plaintiff needed the professional assistance of a counsellor. Dr Diamond and Dr Dinnen clearly support future treatment. Dr Dinnen noted the plaintiff was intermittently taking the serotonin serial re-uptake inhibiting drug Arapax which he described as a useful drug for treating PTSD, even more so where there is a depressive element as is the situation with the plaintiff. Dr Diamond supported the need for cognitive behavioural therapy by a psychologist and treatment by a psychiatrist. In this regard I consider that it would be preferable for a psychiatrist to see the plaintiff to prescribe and supervise prescriptions for psychotropic medications rather than have this seen to by a general practitioner alone.

512. In my view there is ample evidence to support treatment being administered by both a psychiatrist and a psychologist. The precise formulation of the ratio of combinations of particular kinds of treatment at any given time is a matter for clinical judgments based on prevailing needs and exigencies of the plaintiff’s situation and his need for maintenance and palliative treatment from time to time. This would include monitoring for the presence of any noxious symptoms concerning the plaintiff’s tendency towards an avoidance strategy.

513. I therefore reject the defendant’s submissions concerning future treatment. I accept the opinion of Dr Diamond that PTSD is very difficult to treat. I also accept the opinion of Dr Canaris that vulnerability to sudden flare-ups is ever-present and these could badly affect the plaintiff and corrosively affect his ability to function and to have a quality of life. In these circumstances, where the medical opinions indicate the plaintiff’s PTSD to have a poor prognosis, I consider it reasonable, necessary and appropriate to allow the plaintiff a significant award for damages to cater for the cost of allowing him the flexibility of a variety of treatment supports for his chronic and potentially disabling psychological condition.

514. I consider that the nature of the plaintiff’s PTSD condition and its related symptoms and the unpredictable extent of the treatment requirements for the condition calls for a substantial allowance of a buffer to cover the plaintiff’s probable treatment needs. Although the evidence does not permit the precise mapping out of the fine detail of a future treatment regime for costing, I consider that it is still necessary to demonstrate a rational basis for making a substantial allowance of damages for future treatment. In the ensuing paragraph I set out the framework of my reasoning by which I gauge the appropriateness of the sum that I propose to allow for the plaintiffs’ future treatment needs.

Treatment in Dubai

515. Although the plaintiff is in need of treatment for the effects of his PTSD condition there is no direct evidence of the kinds of treatment that may be available for the plaintiff to seek out in Dubai. There is some indirect evidence that suggests he has received some counselling from a friend in Dubai. There is also some evidence that when the plaintiff travelled to Singapore for business, in preparation for that trip he required preparatory counselling and took tranquilising / anti-depressant medication. He did so to assist him to cope with his phobia concerning Asian people and his PTSD reaction to being amongst Asian people whilst he remained in Singapore. I infer from that evidence that he obtained a prescription from a medical practitioner who agreed that there was a need for such treatment. The plaintiff indicated he has access to a medical practitioner whilst he remains in Dubai.

516. I consider it would be both reasonable and appropriate for the plaintiff to see a general practitioner occasionally for access to some form of counselling and also for access to psychotropic medication in order to assist him with preparation for occasional travel from time to time. He still takes Arapax.

517. I consider that over the coming 5 years, during which time the plaintiff is likely to remain in Dubai, he will continue in his attempts to maintain his strategy of avoiding Asian people and to avoid places where he is likely to encounter Asian people. In my view such a course will inevitably take an increasing toll on his coping mechanisms, as is predicted by Dr Diamond and Dr Dinnen. This will progressively deplete the effectiveness of his coping mechanisms and will inevitably compel his return to Australia within the next 5 years.

518. However, in the meantime his continued pursuit of an extraordinary avoidance strategy will progressively take a cumulative toll on him and this will have a cumulative deleterious effect. I find that during that time and from time to time he will be in considerable need of some form of medical and psychological assistance. The evidence does not permit identification of any specific amounts or components for the cost of the treatment he will probably need during that 5 year period in order to maintain and support that strategy. It is also important to recognise that his efforts at trying to maintain his avoidance strategy should be the subject of some kind of medical supervision to monitor the effect that this toll is taking on his health.

519. In the context of a psychological illness such as chronic PTSD, I consider that it would be unreasonable not to provide for such monitoring as a safety net for the plaintiff. However, the absence of such evidence does not mean that an assessment of damages for this probable source of expenditure should not be addressed by a monetary assessment. In such circumstances I consider that the plaintiff is entitled to an allowance by way of a buffer to compensate him for the likely treatment whilst the plaintiff remains in Dubai.

520. In the absence of evidence as to cost of, or likely frequency of, treatment whilst the plaintiff remains in Dubai I consider that a broadly assessed buffer component of $5,000 should be allowed on this account. In my view such an allowance will cater for what I find will be an increasing need on the plaintiff’s part for professional support and treatment to the point where he finds he must return to Australia or to at least assist him to recognise that it would be in his better interests that he did so. In assessing the reasonableness of this lump sum I note that this is the rough equivalent of an allowance of an average of a little over $300 per annum or $6 per week projected over 5 years and discounted by 15 percent for contingencies. That process of comparison reinforces my view of the reasonableness of the allowance for future treatment in the ensuing 5 years in Dubai in the amount of $5,000.

Initial short-term treatment during the first year in Australia

521. When the plaintiff resumes living in Australia, which I have found will occur within the next 5 years, I consider that it would be reasonable to allow him a short-term period of relatively intensive treatment for his chronic PTSD aimed at maximising his re-integration into coping with daily life in this country. I consider that he will need such treatment in order to be able to maximally adjust to and live in this community where it is likely that he will encounter the stressors that provoke and exacerbate his phobia and his chronic PTSD. This is likely to occur just by him moving about within the community.

522. Given that the plaintiff’s PTSD and his phobia concerning Asian people has become deeply ingrained and entrenched over the past 11 years, even though there is no cure for his condition, I consider that to enable him to optimise his chances of maximally re-integrating into life and work in Australia he should be allowed the cost of attending professionally supervised desensitisation sessions, cognitive behavioural therapy sessions under appropriate overview and co-ordination across the combined disciplines of psychiatry and clinical psychology. Concurrent with such treatment, having regard to Dr Brown’s comments on the stressful nature of desensitisation therapy, I consider he will most probably need some form of medication to assist him in this process. Whilst it is not possible to assess the precise combined cost of such treatments this does not mean that no allowance should be made in damages to meet the plaintiff’s need in this regard : see by way of analogy State of NSW v Moss [2000] NSWCA 133.

523. Doing the best I can to be fair to both the plaintiff and to the defendant I consider that for an initial period of one year an allowance should be made for the cost of an average of 3 consultations with a general practitioner, and on average, weekly sessions with either a psychiatrist or a clinical psychologist, probably a combination of both, should be allowed in order to devise, implement and supervise an initial programme of desensitisation therapy. I consider an average of one session per week would be appropriate. I take this view because of the deeply ingrained nature of the plaintiff’s phobia and PTSD, because his vulnerability to anxiety and depression will need intensive support to maximise the scope for improvement during the acute phase of the process of desensitisation, and because the condition is difficult to treat. I also consider that the process should be professionally supported, as it probably will be, by some form of cognitive behavioural therapy, such treatments being tailored for his specific individual needs.

524. With these objects in mind I consider that an amount of $12,000 would be fair and reasonable to both parties to cater for the plaintiff’s treatment needs in the first year upon his return to live in Australia in 5 years time. I have tested the reasonableness of this sum by noting that it is the rough equivalent of an allowance of $300 per week for one year, deferred for 5 years. That process of analysis reinforces my view of the reasonableness of the allowance I propose to make for future treatment during the first year of the plaintiff’s return to Australia, in the amount of $12,000.

Longer-term maintenance treatment whilst living and working in Australia

525. It is salient to note that there will be no cure for the plaintiff’s psychological disorder so that any long-term treatment regime would be palliative in nature and effect. It is also salient to note that the plaintiff will remain vulnerable to recurrent episodes of acute illness. I accept the conclusions and opinions of Dr Diamond and Dr Dinnen in this regard. Nevertheless, I consider that it would be unreasonable not to make an allowance within the plaintiff’s damages for access to such palliative treatment especially since the acute symptoms of PTSD to which the plaintiff remains vulnerable could flare-up at any time and would be a source of great distress to him.

526. Bearing such a reality in mind I consider that in the period following the year of intensive treatment as outlined above and whilst the plaintiff continues to pursue exercising an earning capacity before he retires from the workforce, it is necessary to make an allowance in damages for the reasonable cost of a regime of maintenance treatment and review. I consider that such a regime should be aimed at assisting the plaintiff to assert and maintain, as best he can, some control over his phobia and PTSD, in order to be able to exercise his earning capacity and to avoid incurring the need for the input and assistance from others to cope with day-to-day activities in a potentially stressful environment.

527. The need for such assistance could reasonably arise from the need to negotiate his way around in daily life, including whilst, for example, working, shopping, participating in family and leisure outings, holidays and the like in a society where he is likely to encounter Asian people in circumstances which could at any time trigger exacerbations to his underlying chronic PTSD. Such flare-ups could be acute and debilitating episodes that may need more intensive forms of treatment. With these factors in mind I consider that it would be appropriate to allow for a regime that incorporates the cost of periodic consultations with a general practitioner, periodic consultations with a psychiatrist or a psychologist or both, as well as allowing for prescribed and over the counter medications whenever a medical practitioner considers this to be appropriate.

General practitioner consultations whilst in the workforce

528. I consider that in the period between when the plaintiff is likely to be ready to enter the workforce in Australia, that is in about 6 years time, and until his predicted early retirement, as was explained by Dr Dinnen, a reasonable allowance is required for a maintenance and surveillance review pattern of consultations with a general practitioner. I consider it would be reasonable to allow for 3 such consultations per year at an estimated cost of $40 per consultation specifically to deal with anticipated PTSD related problems, related review and consideration of the need for specialist referral or alternatively, follow-up review of specialist treatment. This is the equivalent of $2.30 per week. The projection of $2.30 per week at 5 percent over the 23 years between age 33, in 6 years time, and age 55 at retirement from the workforce (x 721.2) and deferred for a period of 6 years (x 0.746) and rounded down yields the sum of $1,200.

Psychiatrist and psychologist consultations whilst in the workforce

529. I consider that in the same period outlined above, namely between when the plaintiff is likely to be ready to enter the workforce in Australia in about 6 years time and until his predicted early retirement, a reasonable allowance should be made for a maintenance and surveillance review pattern of consultations with a psychiatrist and a psychologist in a combined, as needed arrangement. I consider it would be reasonable to allow for 6 such consultations per year at $300 per consultation specifically to deal with PTSD related problems and to give consideration to and supervision of any emergent need for prescribed medications to assist the plaintiff to cope with flare-ups and acute episodes that are likely to arise. This regime is the equivalent of $34.60 per week. The projection of $34.60 per week at 5 percent over the 23 years between age 33, in 6 years time, and age 55 at retirement from the workforce (x 721.2) and deferred for a period of 6 years (x 0.746) yields $18,615.

Medications whilst in the workforce

530. In the context of a treatment regime along the lines outlined above I consider that some allowance should be made both for the cost of prescription psychotropic medication as a component of a reasonable treatment regime and the cost of painkilling medication as claimed. In the absence of evidence that enables some form of precision, recognising it is impossible to accurately predict the incidence of this need, I allow a lump sum buffer in the amount of $2,500 for future medication in the period when the plaintiff will be in the workforce until age 55 years. When analysed, this figure is the rough equivalent of an allowance of $5 per week.

Summary of longer-term treatment needs whilst working in Australia

531. In summary, whilst the plaintiff remains in the workforce in this country, between the ages 33 and 55 years his likely treatment expenses are assessed as follows:

(a) General practitioner	$1,200
(b) Psychiatrist and psychologist	$18,615
(c) Medications	$2,500
Sub-total	$22,315

Longer-term maintenance treatment after early retirement

532. Consistent with the finding I have made that the plaintiff will no longer be able to cope with working by the age of 55 years, I consider that an allowance must be made for a reasonable treatment regime that will cater for the plaintiff’s PSTD related treatment needs following his retirement at age 55 years. The period in question involves some 30 remaining years between age 55 and the end of the plaintiff’s estimated life span of a remaining 58 years from the present time, that is, to age 85. Recognising that precision is not possible in such a process of estimation, and recognising that fairness requires an average be taken for the incidence of such treatment over this period, it is necessary to identify the fair likely incidence of general practitioner, psychiatrist and psychologist consultations and medication costs. It is implicit in this approach using averages that the need for treatment may be more intense in the early period and less intense towards the end of the period.

General practitioner consultations after retirement

533. I consider that in the period between ages 55 and 85 years a reasonable maintenance and surveillance pattern of consultations with a general practitioner would be to allow for one such consultation per month at $40 per consultation specifically to deal with PTSD related problems. This is the equivalent of $9.20 per week. The projection of $9.20 per week at 5 percent over the 30 years (x 822) and deferred for a period of 28 years (x 0.255) yields $1,928.

Psychiatrist and psychologist consultations after retirement

534. Similarly, I consider that in the period between ages 55 and 85 years, a reasonable maintenance and surveillance review pattern of consultations with a psychiatrist and a psychologist combined but in separately spaced consultations would be to continue to allow for 12 such consultations per year at $300 per consultation specifically to deal with PTSD related problems. This regime would allow the practitioners concerned to give consideration to and supervision of the need for prescribed medications. I consider this increased pattern of consultation will be necessary in the plaintiff’s post-retirement years because it is likely that in this period the plaintiff’s PTSD symptoms will have a more pronounced and increased effect on him because of the wearying toll that would have been expected to have been exacted upon him by that time. For example, it is not remote to infer that an enforced retirement at age 55 due to psychological illness could reasonably result from the unfortunate effect of the events which occurred when he was 16. The regime I have identified is the equivalent of $69.23 per week. The projection of $69.23 per week at 5 percent over the 30 years (x 822) and deferred for a period of 28 years (x 0.255) yields $14,511.

Medications after retirement

535. In the context of a treatment regime spanning the 30 years following retirement along the lines outlined above, an allowance should also be made for psychotropic medication as a component of that regime. Again, in the absence of evidence that enables some form of precision, I allow a lump sum buffer in the amount of $2,500.

Summary of longer-term maintenance treatment after retirement

536. In summary, during the plaintiff’s retirement years, I assess his likely treatment expenses as follows:

(a) General practitioner	$1,928
(b) Psychiatrist and psychologist	$14,511
(c) Medications	$2,500
Sub-total	$18,939

Summary of future treatment expenses

537. The components I have allowed for future treatment are summarised as follows:

(a) Treatment whilst in Dubai	$5,000
(b) Treatment in the first year of return to Australia	$12,000
(c) Longer-term treatment whilst still working	$22,315
(d) Longer-term treatment whilst no longer working	$18,939
Total	$58,254

538. Given that there are a number of imponderables and uncertainties associated with the assessment of damages for future treatment as outlined above, and given that mathematical precision in such an assessment, whilst preferable to demonstrate a rational basis for the award, is not fully achievable in the circumstances of this case on account of such imponderables, I therefore round down the sum I have identified and I assess the plaintiff’s damages for future treatment in the form of a rounded down buffer in the sum of $50,000.

Past out-of-pocket expenses

539. The plaintiff makes a claim for $5,000 as a global estimate of his past out-of-pocket expenses in respect of general practitioner and psychiatric treatment he has incurred to date. This claim is advanced as an estimate in the absence of any retained records concerning treatment costs. In addition, the plaintiff makes a claim for the cost of the over the counter and prescribed medications that he has taken. Those medications have been estimated by the plaintiff at $9,531. The total sum claimed is $14,531. The plaintiff gave evidence that he spends about $30 to $40 per month on medications. No evidence was tendered as to what costs were incurred in the plaintiff receiving treatment from the ambulance, from Bankstown Hospital, from Dr Kanawati, Dr Ali, Dr Takas and perhaps medical treatment in Dubai or whilst travelling. The defendant submitted that the plaintiff’s claim remained unsubstantiated. The defendant does not concede these estimates advanced by the plaintiff.

540. There is little doubt the plaintiff has received the treatment described and there is little doubt that such treatment was necessary, was required by the plaintiff at the outset and that it was of some benefit to him in causing the acute phase of the PTSD to recede. Given the imprecision inherent in the plaintiff’s claim for out-of-pocket expenses I propose to round down the claimed sum to $10,000. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the sum of $10,000.

Summary of damages assessment

541. The assessment of the plaintiff’s damages is summarised as follows:-

(a) Non-economic loss	$202,500
(b) Past loss of earning capacity	$2,800
(c) Future loss of earning capacity	$326,000
(d) Past loss of superannuation	$308
(e) Future loss of superannuation	$35,860
(h) Future treatment	$50,000
(j) Past out-of-pocket expenses	$10,000
Total	$627,468

E. DISPOSITION AND ORDERS

Disposition

542. In summary, I have found that the plaintiff’s injuries occurred as a result of breach of duty of care on the part of the school authorities thus giving rise to the defendant’s liability to the plaintiff in damages. I have assessed the plaintiff’s damages in the sum of $627,468.

Orders

543. I order:-

(a) A verdict be entered in favour of the plaintiff;
(b) Judgment for the plaintiff in the sum of $627,468;
(c) The defendant is to pay the plaintiff’s costs;
(d) The exhibits may be returned;
(e) Liberty to the parties to apply on 7 days notice in the event that further orders are required.

TABLE 1

Replication of paragraph 7.14 of report of Dr Wendy Roberts dated 25 August 2008

7.14 Mr “H” completed a Minnesota Multiphasic Personality inventory, Form 2, which I had scored separately, but carried out interpretation of this.

7.14.1	Mr “H” the following Validity Scale T-Scores:
T-Scores
VRIN	50
TRIN	71F
F	104
Fb	96
Fp	106
FBS	93
L	87
K	58
S	59
7.14.2	Mr “H” obtained the following elevated Clinical Scale scores:
T-Scores
Hs	86
D	104
Hy	89
Pd	87
Pa	86
Pt	102
Sc	112
Si	76
7.14.3	On the Content Scales, Mr “H” obtained elevated scores on the following:
T-Scores
ANX	70
DEP	80
HEA	70
LSE	67
SOD	81
WRK	74
TRT	86
7.14.4	On the Supplementary Scales, Mr “H” obtained the following elevated scores:
T-Scores
R	83
Mt	76
PK	85
MDS	79
O-H	72
7.14.5	The following scores were extremely low:
T-Scores
Es	30
Do	30
GM	30
7.14.6	With regard to interpretation, on the Validity Indices of the MMPI-2, Mr “H” was over reporting psychopathology in an attempt to appear more disturbed than he is in reality and to be embellishing symptomatology, with the pattern of scores overall on the Validity Scales rendering the clinical profile completely uninterpretable. This in turn gives rise to questions about his answers on interviewing for post traumatic stress disorder (see below).