Hanna v Uniting Church in Australia Property Trust (NSW) - [2010] NSWSC 293

No judgment structure available for this case.

CITATION: Hanna v Uniting Church in Australia Property Trust (NSW) [2010] NSWSC 293
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14-22 September 2009

JUDGMENT DATE :
22 April 2010

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: 1. Verdict and judgment for the defendants against the plaintiff.
2. The defendants' cross claims are dismissed.
3. The matter will be listed for hearing on the question of costs on a date to be arranged by counsel with my associate during the next 7 days.

CATCHWORDS: Common law - personal injury - school camp - no breach of duty.

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act, 1946
Civil Liability Act, 2002

CASES CITED: Richards v Victoria (1969) VR 136
Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538
Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307
Tabet v Gett [2010] HCA 12
Cartledge v E. Jopling & Sons Limited [1963] AC 758

PARTIES: Jemima Hanna (Plaintiff)
Uniting Church in Australia Property Trust (NSW) t/as MLC School (1st Defendant)
Camp Somerset Pty Limited t/as Somerset Outdoor Learning Centre (2nd Defendant)

FILE NUMBER(S): SC 12386/08

COUNSEL: P. Menzies QC/W. Strathdee (Plaintiff)
R. Cavanagh (1st Defendant)
G.M. Gregg (2nd Defendant)

SOLICITORS: Mitchell Lawyers (Plaintiff)
Moray & Agnew (1st Defendant)
Yeldham Price O'Brien Lusk (2nd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Thursday 22 April 2010

12386/08 JEMIMA HANNA v UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) t/as MLC SCHOOL & ANOR

JUDGMENT
Introduction

1 The plaintiff, who was born in May 1985, was a year 10 student at the Methodist Ladies College, Burwood (MLC) when, on 6 February 2001, whilst participating in a year 10 school camp organised by the second defendant, she fell when hiking in bushland, sustaining injury to her right ankle. Consequent upon that injury, the plaintiff developed a condition of complex regional pain syndrome type 1 (CRPS) in the right leg which, she alleges, has caused her ongoing pain and disability.

2 The plaintiff has sued the first defendant, as owner of the school and having the care, control and management of students, teachers and staff, and the second defendant, as organiser of the camp, for damages for negligence in relation to the injury and its consequences. The plaintiff also sues the first defendant, in contract, for breach of an implied term to exercise reasonable care and skill to ensure the plaintiff’s safety whilst at school or attending activities arranged for the students.

3 The plaintiff, in her amended statement of claim filed on 16 November 2007, alleged the defendants were at fault, essentially, in directing the plaintiff to hike in dangerous conditions and in failing to take reasonable care of her following injury. In opening the plaintiff’s case, senior counsel confined the claim to the following particulars of negligence:

“(e) Failed, following the Plaintiff slipping and sustaining injury, to provide any or any adequate first aid or medical treatment for the Plaintiff.

(f) Required the plaintiff to continue weight bearing on her right ankle following the injury and, further, requiring her to participate in physical activities during the camp following her injury.

(g) Failed to provide for means of transport for the Plaintiff to leave the camp after her injury in order for her to rest and or obtain immediate medical treatment.

4 The defendants have denied liability to the plaintiff and have alleged contributory negligence on her part.

5 There is no agreement as to the damages recoverable by the plaintiff should she succeed in her action.

6 The defendants have cross-claimed against each other, seeking indemnity or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946, or damages equal to an indemnity against liability to the plaintiff.

The plaintiff’s evidence

7 (a) At about 8.00 am on 6 February 2001, the plaintiff and a number [approximately 18] of other year 10 students from MLC set out on a bushwalk along a track near the Colo River at Somersby, New South Wales. The track was maintained and signposted by the National Parks and Wildlife Service. Each of the girls was carrying “a big hiking pack”, the weight of which was not the subject of evidence. It had been raining heavily previously and it continued to rain intermittently during the bushwalk. The plaintiff was physically well. She weighed 50-55 kg and was “a sporty type” who participated in rowing, hockey and softball, rowing being her main sport.

(b) Mr Byrne, an instructor employed by the second defendant, was at the front of the group and two MLC teachers, Mr Woodland (a music teacher) and Ms Edwards (a physical education teacher), brought up the rear. The track in parts was narrow and the girls tended to spread out between Mr Byrne and the teachers. When the group set out, the plaintiff and her best friend, Claire McCormack, were near the front of the group. Subsequently, they became separated, with Ms McCormack being near the rear of the group and the plaintiff toward the middle.

(c) At 12.30 pm, whilst scrambling over rocks on the path, the plaintiff jumped down. She “heard what was like a crack sound and then instant pain” in her right ankle. The ankle twisted in some way and she fell to the ground. The pain was around the inside area of the foot and ankle part and then went straight up the back of the calf. She remained on the ground for a couple of minutes. There was nobody with her at the time. She then got herself back on to her feet with her pack still on and commenced to hobble onward. The teachers caught up with her and she told them that she had hurt her ankle and she thought she had sprained it. She had difficulty walking and complained to the teachers of pain. The teachers told her that lunch would be in half an hour and she kept on walking. She limped as she walked. The teachers remained in her vicinity.

(d) The plaintiff said she was certain of the time she was injured as she looked at her watch. Later she conceded the time she was injured may have been 12.30 pm plus or minus and conceded her solicitors, on her instructions, had furnished particulars to the defendants’ solicitors stating the time of injury was between 12.45 and 1.00 pm.

(e) She walked for a further half an hour after injuring her ankle, until the group had lunch.

(f) She did not see Mr Byrne following the injury until the group stopped for lunch. He came over and she told him that she thought she had sprained her ankle. He took her boot off. She could see that her foot was blue, “the colour of a pair of blue jeans”, from the “whole foot up to roughly [her] calf, halfway up [her] leg”. The plaintiff said the foot was “like ice. It was very cold to touch”. Mr Byrne pushed the foot to a “right angle” and strapped it with Elastoplast. She said that at this stage, she yelled in pain and it was “the most excruciating pain ever” compared to that which she had suffered at the time she had fallen.

“Q. You were with the teachers throughout the remaining five hours?
A. I remember wanting to sit down so bad because standing up and walking was so painful. I don’t remember exactly what I said but I had to sit down, because the pain of standing up was more painful. I had to sit down because standing up was so painful.

Q. Did you sit down?
A. I was only allowed to sit down for two seconds, no longer than that.

Q. Who prevented you from sitting down for more than two seconds?
A. Mr Woodland.

(h) As they were going down the decline, the plaintiff rolled her ankle on a number of occasions. Whilst walking for the five hours she fell more than a dozen times. On these occasions Mr Woodland would grab her backpack and hoist her up. She did not agree that Mr Woodland had taken her backpack from her after she sustained injury.

“Q. You did not complain of excruciating pain during that next half hour of the walk, I suggest to you; is that right?
A. Yes I did complain

…

Q. That evening you were not complaining of excruciating pain; do you agree with that?
A. No.

…

Q. In fact what occurred was simply this, Miss Hanna, that you did not at any time complain of excruciating pain in your ankle during that camp; agree with that?
A. No, I don't.

(k) The plaintiff at the time of the incident had engaged in bushwalking or hiking activities on approximately a dozen occasions. She had been on three fitness camps and approximately five camps involving a bush walk.

(l) In cross examination she said the further walking was from 1.30 pm to 5.00 pm, at which time the group was picked up by a minibus and taken back to the base camp. She said that at the time she was injured she was walking across or along a ridge at the top of a hill which plateaued out to a flat area and then, shortly after the place where they had lunch, the terrain declined down the mountain or hill.

(m) The plaintiff gave evidence that on arrival back at the base camp, her friend Claire piggy-backed her to the showers and toilet. She asked for a Panadol. She didn’t get one at first, but asked a teacher from another group and was given one. There was no evidence from any other source in this regard. However, it may be accepted the plaintiff had pain in her ankle and had a Panadol. There was no evidence that there was any significant delay in obtaining the Panadol.

(n) After the plaintiff had her shower, Claire and a few of the other girls took the plaintiff to the sick bay. She approached the head teacher of the camp, who “sort of knocked me back and said, you know, ‘You'll be all right’”. She then walked out and at that stage, Ms Edwards came and found her and bandaged her foot with a crepe bandage. She had been piggy-backed by Claire to the sick bay. Ms Edwards had no recollection of bandaging the plaintiff’s foot with a crepe bandage.

(o) On the following day, the group was to undertake a 45 minute hike along the road. The plaintiff could not remember if she said anything to persons in authority about her foot at that time. She started the walk and was in a lot of pain. Claire piggy-backed her for a short time and then a car gave her a lift to the next spot.

(p) The next activity on that day was bike riding. She said she participated in “half of the bike riding” but “it was too hard and I was in excruciating pain”. She thereafter travelled in a backup vehicle, whilst Mr Woodland rode the bike for her.

(q) She went on a flying fox on that day. She had ridden a flying fox before and knew what it entailed. She said that she had excruciating pain from the ankle, but chose to go on the flying fox as it only involved stress on the upper body.

(r) She said that there was an “emu parade” (involving walking, picking up rubbish from the ground) on the following and last day of the camp. She said she was ordered by the head teacher of the camp [Ms Denton] to participate in the parade. She said “By that time I was in excruciating pain. I got told off for not helping enough.”

(s) The plaintiff said she had asked Ms Denton for an icepack at the end of the camp when they were on the bus. Ms Denton had said no, as everything was packed away.

(t) The plaintiff said she wanted to stay at the school camp and felt there was no other option - she understood that the surrounding roads had been cut by heavy rain.

(u) On 8 February 2001, after returning home from the camp, the plaintiff attended Mona Vale Hospital emergency department. [No history was recorded in the hospital notes of discolouration of the foot/leg and examination revealed no obvious swelling or discolouration. An ankle sprain was diagnosed, the ankle was strapped and the plaintiff was allowed to leave.]

(v) On 10 February 2001 the plaintiff attended Warriewood Medical Centre and Royal North Shore Hospital in relation to her ankle. [No history, or examination finding, of discolouration of the plaintiff’s right foot/leg was recorded. The orthopaedic surgeon at Royal North Shore Hospital concluded: “Not sure what is going on.”]

(w) The plaintiff was cross-examined in respect of being involved in a motor vehicle accident at about the time of this incident. The cross-examiner appears to have relied entirely upon an entry in the Royal North Shore Hospital records, which contains an abbreviation which he read as “MVA” (motor vehicle accident), but which plaintiff’s senior counsel asserted was “MVH” (Mona Vale Hospital). In my opinion, the preferable construction is “MVH” being an abbreviation for Mona Vale Hospital.

Other lay witnesses called by the plaintiff

8 Ms McCormack gave evidence that

(a) She was a very close school friend of the plaintiff;

“… wanted to stop the hike, she wanted to get off the mountain, she wanted a helicopter to come and take her away. She didn't want to continue.”

(c) The plaintiff continued on the walk which lasted a further 4-6 hours. The plaintiff’s pack was carried by a teacher at some point in time. Ms McCormack did not walk with the plaintiff after lunch as the plaintiff was in distress and she could do nothing about it.

(d) She described the terrain by reference to a conversation between the adults present, who said that “the only way down the hill was to keep walking”.

9 Ms McCormack was effectively cross examined and conceded she might be a bit hazy on some details, that she did not know how long the walk was and it was possible it might have been 11 kilometres, that her times were probably wrong. She agreed her evidence that the injury occurred two hours after the bushwalk commenced was wrong and that lunch occurred at midday and the injury was half an hour before. When asked why she had said the further walk took up to six hours, she said she had guessed.

10 Mrs Mugridge, a school friend of the plaintiff, gave evidence as to her observations of the plaintiff at the camp. However, as the plaintiff and Mrs Mugridge were in separate groups, Mrs Mugridge’s evidence was of little assistance.

11 The plaintiff’s mother gave evidence the plaintiff had phoned her from the school saying that she was home from the camp and had hurt her ankle at camp. Her mother picked her up from school. When she did so, she found the plaintiff “couldn’t walk basically”. She recalled looking at the plaintiff’s ankle when she first saw her and that “it was cold” and “blue, and it was just different from the other foot. There was significant differences.”

The defendants’ witnesses

12 Messrs Byrne, Woodland, Colaguiri [the second defendant’s operations manager] and Ms Edwards gave evidence for the defendant. Mr Byrne gave evidence he had no recollection of any incident involving the plaintiff. However, Mr Woodland and Ms Edwards recalled the event.

13 The defendants’ version of events was, in essence, as follows:

(a) The plaintiff had a good rapport with the teachers. Ms Edwards had taught the plaintiff. Mr Woodland knew the plaintiff quite well from previous years. She was, on Ms Edwards’ description, a person not afraid to make her thoughts or feelings known to her teachers.

(b) The walk started that morning after 8.00 am. The total distance of the walk on that day was 11 kilometres. The injury to the plaintiff occurred after lunch.

(c) The plaintiff’s leg was examined by Mr Byrne just after the injury happened; within 5-10 minutes of her informing the teachers that she had sustained injury, as they had to stop the group and gather. Ms Edwards cannot recall now if the boot and sock were removed or if the examination was conducted with the boot in place.

(d) The plaintiff said the ankle was sore but she did not complain a lot.

(e) She said and demonstrated that she was capable of weight bearing on the ankle.

(f) The plaintiff was diagnosed as having a sprained ankle and it was taped to add to its stability.

(g) Although the area was remote, the bushwalk was nearing its conclusion and it was only about a 30-40 minute walk to the nearest roadway. The plaintiff said she was able to continue.

(h) The plaintiff was relieved of her pack and from that point to the end of the walk was assisted on any difficult parts of the track. Three or four rest breaks were taken, each of about five minutes.

(i) The remainder of the walk, including rests, took between half and one hour.

(j) The plaintiff complained her ankle was sore and she was limping. However, at no time did the plaintiff complain of excruciating pain nor did she fall down and have to be dragged up by her pack. She did, however, stumble on occasions on the track, as did others. The plaintiff did not say anything about not being able to go on or wanting to be taken off the walk.

(k) Ms Edwards gave evidence that that evening she checked the plaintiff who, at the time, had her foot bandaged, was using an ice compress and had the foot raised whilst laying in bed. The plaintiff told her her foot was sore but she was fine.

14 There are numerous conflicts in the evidence. In considering those conflicts, it must be borne in mind that the evidence was given many years after the events occurred, generally the witnesses had not been required to recall those events until six or seven years after their occurrence and there were no contemporaneous accident or injury reports or witness statements available. The second defendant had a protocol for recording injuries but the documents had either not been completed or had been lost, I am unable to say which.

15 In those circumstances, the defendants did not suggest that the plaintiff was lying to the Court, although it was suggested that her evidence was unreliable by reason of the passage of time and a tendency to exaggerate and confuse the dates when various symptoms were manifest.

16 Ms McCormack’s evidence appeared exaggerated and she was prepared to guess at answers when uncertain. I did not feel that I could rely upon her evidence unless it was corroborated from other sources.

17 Messrs Woodland and Byrne are no longer employed by the first and second defendants respectively. Ms Edwards remains employed by the first defendant. The defendants submitted their witnesses had no reason to lie. Plaintiff’s senior counsel however suggested that they had an interest to defend their actions at the relevant time. Ms Edwards, Mr Woodland and Mr Byrne presented as mature, responsible persons. In my opinion they were doing their best to assist the Court by providing their honest and best recollection of relevant events albeit their recollections on some matters were uncertain and, in the case of Mr Byrne, non existent. Senior counsel for the plaintiff expressly accepted Mr Woodland was a mature, responsible teacher. He did not suggest Ms Edwards or Mr Byrne were other than mature responsible persons.

CRPS

18 The injury to the plaintiff involved two interlinked matters, namely:

(a) the traumatic injury to the ankle. This was a sprained ankle. There was no evidence of any orthopaedic condition;

19 CRPS is an extremely rare condition, the aetiology of which is not fully understood. It may involve abnormalities in the sensory, motor and sympathetic nervous systems. Blue, red or pale discolouration of the limb and changes of temperature, including very cold, are indicators of the condition. The presence of severe pain is also consistent. The condition can develop instantaneously with the injury or be of delayed onset. It can develop from major or minor injuries. Its symptoms and signs can be quite variable from consultation to consultation. The signs and symptoms which the plaintiff said she observed when her boot was first removed were consistent with the condition. It was not suggested by the medical experts or by senior counsel for the plaintiff that anyone at the scene of the hike could have diagnosed CRPS or foreseen its occurrence.

Liability

Duty of care

20 It was accepted by the parties that the first defendant owed the plaintiff a non-delegable duty of care. The duty of teachers has been formulated in the following terms:

Richards v Victoria

Geyer v Downs

21 It was common ground that the second defendant owed a duty of care to the plaintiff to take reasonable care for her safety.

22 The plaintiff alleges the defendants, or either of them, breached their duty of care to the plaintiff on a number of occasions during the period from the time of injury until the end of the camp.

23 These allegations raise issues of conflicting evidence, whether breach of duty has occurred, and causation. These matters are considered separately hereunder.

The period between the injury and the first examination of the ankle

24 The plaintiff submitted the defendants were negligent because “it took half an hour until she was examined and in that time she had been required to continue walking.” It was alleged this failure to treat caused the CRPS, made it worse, or, at least, caused the plaintiff to suffer more pain in the ankle.

25 The plaintiff gave evidence that approximately half an hour elapsed between when the teachers reached her and lunch, at which time her ankle was examined for the first time. She did not remember how long after the fall the teachers reached her. She was by then “hobbling” along the track and continued to do so until lunch. Ms McCormack also said lunch was taken half an hour after the injury.

26 This version differs from that of the defendants who said the injury occurred after lunch. Ms Edwards said she came across the plaintiff on the track. The plaintiff told her she had hurt her ankle “so we stopped and then the instructor looked at her ankle”.

27 Mr Woodland said he came upon the plaintiff sitting by the side of the track. He said he had a recollection of Mr Byrne examining the plaintiff’s foot just after the injury had happened. He was asked in cross examination if 20-30 minutes elapsed before there was an examination of the ankle. He responded

“I would say that is a little long. Maybe ten minutes, five minutes, because the group is, sort of, spread out and then by the time word got out that someone’s injured and the group came back or we caught up to the group, and the group, sort of, met as a whole, that’s when the first aid inspection would have occurred.”

28 The plaintiff’s evidence as to time conflicts with the evidence of Ms Edwards and Mr Woodland. It also differs from what she told Dr Begg (15 minutes from injury to getting boot off and examined) and Dr Bodel (kept walking 15-20 minutes after fall till lunch).

29 In my opinion, it is more likely than not that some 5-10 minutes elapsed whilst a message was got to Mr Byrne at the head of the group and he returned to the plaintiff and examined her foot. This was necessary and not unreasonable. It is more likely than not the plaintiff was not walking during the period she was awaiting the arrival of Mr Byrne.

30 In my opinion, there was no breach of duty by the defendants in relation to this period.

31 There was also no direct evidence that the alleged breach by the defendants during this period would have been causative of any compensable harm to the plaintiff.

The first examination of the ankle

32 The plaintiff asserts that on the first examination removal of her boot and sock revealed blue discolouration half way up the calf, an iciness of the leg and that she suffered excruciating pain during the taping of the foot. In this regard, the plaintiff has some support from Ms McCormack. The signs and symptoms complained of by the plaintiff were consistent with the onset of CRPS.

33 Ms Edwards cannot recollect the plaintiff’s boot being taken off. However, she was with Mr Byrne when he examined the foot. I would infer from Mr Woodland’s evidence that the boot was taken off, together with the sock, when Mr Byrne’s examination took place. However, Mr Woodland does not recall seeing the plaintiff’s foot at that time as he was attending to other matters.

34 Notwithstanding there is no direct contradiction of the plaintiff’s evidence, I am unable to accept it for the following reasons:

(a) The plaintiff gave evidence that the blue discolouration as described was continuously present for some weeks after the injury. She said it was present when she first attended Royal North Shore Hospital and Warriewood Medical Centre. However, the relevant notes of the hospital and medical centre contain no recorded history of blueness nor is the presence of any such signs on examination noted on the records. Similarly with the Mona Vale Hospital notes.

(b) Mr Byrne gave evidence, and I would have inferred in any event, that the presentation described by the plaintiff was so unusual it would have been recalled by him had it been present. Similarly with Ms Edwards who was with him at the time of the examination.

35 In my opinion, the plaintiff has moved forward in time the signs and symptoms associated with the CRPS ultimately developed by her.

36 If, contrary to my findings, the plaintiff’s evidence was correct, then this would confirm that CRPS had developed in the absence of any fault by the defendants in their treatment of the plaintiff.

The period between the first examination of the plaintiff’s foot and her return to camp

37 The plaintiff gave evidence that after her foot was examined she was required to walk for an additional five hours in circumstances where she was suffering severe pain of which she complained to the adults present, she was falling down and being dragged back up by her pack, only allowed to sit for two seconds at a time and all whilst carrying the heavy pack. In cross examination, the period of time was reduced to 3½ hours. Ms McCormack’s evidence in this regard was of no value, being the product ultimately of a guess.

38 Ms Edwards’ and Mr Woodland’s evidence was consistent. The injury occurred near the end of the hike. It took about half to one hour to complete the hike and reach the road where the plaintiff was picked up by a vehicle. Their description of the place of injury was identified by Messrs Byrne and Colaguiri as being 30-40 minutes walk from the road. This was consistent with the plaintiff being told the end of the hike was “just around the corner”.

39 I prefer the evidence of Ms Edwards and Mr Woodlands on this issue, confirmed as it is by Messrs Byrne and Colaguiri.

40 The issues thus became whether the defendants, or either of them, were negligent in permitting the plaintiff to walk for a further half to one hour on a sprained ankle and, if they were, did that action cause or contribute to the plaintiff’s injury.

41 The plaintiff’s case was that the basic treatment for a typical strain was RICE ie rest, ice, compression and elevation, and that this should have been administered immediately following the injury and the plaintiff should have been evacuated from the bushwalk to enable this to occur. This comment, it seems to me, is hindsight reasoning.

42 In my opinion, the defendants did not show a lack of reasonable care in their treatment of the plaintiff during the remainder of the bushwalk after the examination of the ankle for the following reasons.

(a) Mr Byrne had significant qualifications and experience in bushwalking and first aid. He had conducted walks for the second defendant every week for the previous two years. He was thus familiar with the area.

(b) Ms Edwards was employed at the physical education department of MLC. She held a Bachelor of Education with Honours in Human Movement and had a Remote First Aid Certificate at the time of injury. She had been on many camps before and was “pretty experienced” with ankle injuries as she had had many ankle injuries in her time and before the camp had treated others with sprained ankles. She said that at school girls are always spraining their ankle for a number of sports, “it’s just a thing that happens in sport”.

(c) An examination of the ankle was carried out by Mr Byrne. Ms Edwards observed and approved of what he did.

(d) The diagnosis of a sprained ankle was the correct diagnosis. It was the same diagnosis as that made by the examining doctor at Mona Vale Hospital on 8 February 2001 and it was subsequently confirmed after the plaintiff had undergone a battery of tests.

(e) The ankle was strapped, the same course as was taken at Mona Vale Hospital.

(f) Ms Edwards said that she did not regard the incident at the time as significant. Although Ms McCormack gave contrary evidence, it is likely she so regarded it as she did not accompany the plaintiff on the remainder of the walk despite being her best friend and, on her evidence, being very concerned for her welfare.

(g) Dr Gronow recorded in his report that the plaintiff at the time of the injury “thought it [the injury] was trivial”.

(h) The injury occurred in a remote area and the group walked to the nearest road from which transport could be accessed.

(i) The plaintiff was able to weight bear on the foot and to walk. She said she was able to continue and she did. The plaintiff was accompanied by the teachers for the rest of the walk. They observed nothing to indicate the plaintiff should stop walking. I find she did not complain of excessive pain during this period.

(j) The plaintiff’s pack was taken by Mr Woodland and the plaintiff was assisted when necessary. Rests were taken. I reject the evidence that the plaintiff was only allowed to rest for “two seconds” at a time and the evidence that she was falling down and being hauled up by her pack.

(k) There was not, on my findings, any indication of the presence of CRPS. It could not have been anticipated that such a complication might occur. Certainly it was not to be anticipated by the defendants’ servants and agents and the contrary has not been submitted.

43 The actions of the defendants are to be judged prospectively at the time they were taken and not retrospectively when it is known that the plaintiff has developed an extremely rare condition as a result of the injury – Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 441 [16].

44 Dr Stephens in his report dated 26 April 2008, said:

“I do not consider it likely that more in the way of first aid would have helped. Minor injuries are best treated functionally. That is, as practically as possible with normal activities. A good outcome can reasonably be expected in a large majority of cases. The outcome in Ms Hanna’s case, however, followed an unusual pathway which was not to be predicted and which unfolded slowly over a period of about eight weeks.”

45 In my opinion, the action of the defendants in permitting the plaintiff to continue to walk was reasonable having regard to all the circumstances. No breach of duty has been established in respect of this period.

The period from the return to camp to the end of camp

46 There was evidence the plaintiff was helped to the shower and the dining hall. There was evidence she sought and obtained a Panadol, probably after a short delay when the first teacher asked was unwilling or unable to meet the request. The sick bay was full. There was evidence from Ms Edwards that she checked the plaintiff who, at the time, had her foot bandaged, was using an ice compress and had the foot raised whilst laying in bed. I accept this evidence.

47 The evidence of the next day was somewhat scant. Ms Edwards and Mr Woodland each gave evidence they saw the plaintiff in the morning, asked how she was and were told the ankle was still sore but she was well. Ms Edwards left the camp at lunch time.

48 There were activities arranged for the girls that day comprising a walk, a bike ride and using a flying fox. The plaintiff gave evidence she wanted to stay at the camp and it was her decision to bike ride but she found it too hard. Similarly her participation in the walk. On each occasion, as soon as she indicated she could not participate in the activity she was put in the back of the support vehicle. The plaintiff participated in the flying fox as it involved upper body strength only.

49 On the following day the plaintiff said she was chastised for not participating fully in the clean up of the camp and her request for an ice compress was refused as everything had been packed up for the trip back to school.

50 I do not accept that the plaintiff engaged in the activities which she did because she was “encouraged” in a coercive way to participate. The plaintiff, in my opinion, engaged in these activities voluntarily. The degree of activity was not inappropriate – see Dr Stephens’ opinion and the treatment at Mona Vale Hospital. I do not accept the plaintiff was suffering excessive pain during this period. Nor do I accept that reasonable care demanded that the plaintiff be required to leave the camp early.

Conclusion

51 In my opinion, the plaintiff has not established any breach of the duty of care or of the implied term of the contract so far as the first defendant is concerned. Neither has she established breach of duty on the part of the second defendant.

52 If I was in error and a breach of duty was established, it would become necessary to consider the issue of causation. In my opinion the plaintiff’s case would fail on this ground also for the reasons which follow.

53 The plaintiff’s case on causation is put in three ways. These are discussed hereunder.

54 It was put that the whole of the loss and damage suffered by the plaintiff was the result of the failure to adequately care for her following the injury.

55 This submission, in my opinion, is untenable. The specialist medical opinion before the Court is that there was a causal relationship between the injury to the ankle on 6 February 2001 and CRPS. Dr Bleasel said - “no doubt caused”; Dr Bodel – “entirely due to”; Professor Cousins – “appears to have been”; Dr Gronow – “highly probable”.

56 Senior counsel for the plaintiff invited me to apply the principle in Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 by reference to the presumptive inference which the sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology.

57 However, in my opinion, to so find in the light of the medical evidence would not be open to me. In any event, the only presumptive inference that I would draw from the facts alone is that the CRPS resulted from the initial injury to the ankle.

58 The second way in which the plaintiff’s case was put was that causing the plaintiff to walk for an additional five hours and then to be on her feet from time to time whilst back at the camp caused the CRPS to be greater than it otherwise would have been. There is some medical support for this in the evidence of Drs Bodel and Bleasel as well as Professor Cousins. However, each of those supportive opinions is dependent upon a history that the plaintiff walked for five hours following the injury, suffering acute pain. As Dr Bodel and Dr Bleasel were not called to give evidence an alternative scenario based upon the evidence of the defendants was not put to them and it is not known what their opinions would be in that regard. Professor Cousins gave evidence that on the defendants’ history he was unable to put the matter any higher than a possibility.

59 The defendants’ qualified expert, Dr Gronow, said that, irrespective of the period walking after the injury, it would have no effect on the development and extent of the CRPS.

60 Dr Stephens was of a similar opinion when he said in his report:

“I do consider that the nature and extent of any first aid treatment before Ms Hanna left the camp on 7 February 2001 did not influence the outcome and that this outcome would have remained unchanged regardless of the nature and extent of such treatment. It should not be forgotten that the treatment recommended at Mona Vale Hospital by Dr Faery was on similar functional lines.

61 In Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 the Court of Appeal held that a mere possibility was not sufficient to establish a fact on the balance of probabilities.

62 Additionally the plaintiff’s argument appears to involve a claim for loss of the chance that the administration of RICE and the forbidding of the plaintiff to engage in activities during the remainder of the camp might have reduced the extent of the CRPS or prevented it from developing further. This argument is not available – Tabet v Gett [2010] HCA 12.

63 It was also submitted the defendants allowed the plaintiff to be on her feet for four/five days. This caused pain in her foot additional to that which would have been attributable to the original injury. The plaintiff was entitled to compensation for the five days of additional pain.

64 In my opinion, this claim would fail as

(a) The increase in pain due to remaining on her feet and walking during part of the period she was on camp is immeasurable and de minimis. It is not damage which is “beyond what can be regarded as negligible” – Cartledge v E. Jopling & Sons Limited [1963] AC 758 at 772.

Civil Liability Act 2002.

65 In my opinion, the plaintiff’s action fails. There will be verdict and judgment for the defendants. The cross claims should be dismissed. The parties have requested that the matter be listed for argument on costs.

Orders

66 I make the following orders:

1. Verdict and judgment for the defendants against the plaintiff.

2. The defendants’ cross claims are dismissed.

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22/04/2010 - Typographical error - Paragraph(s) 64

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Citations

Hanna v Uniting Church in Australia Property Trust (NSW) [2010] NSWSC 293

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

2

Rosenberg v Percival [2001] HCA 18

Rogers v Whitaker [1992] HCA 58

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45

CITATION:	Hanna v Uniting Church in Australia Property Trust (NSW) [2010] NSWSC 293 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14-22 September 2009
JUDGMENT DATE :	22 April 2010
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hislop J
DECISION:	1. Verdict and judgment for the defendants against the plaintiff. 2. The defendants' cross claims are dismissed. 3. The matter will be listed for hearing on the question of costs on a date to be arranged by counsel with my associate during the next 7 days.
CATCHWORDS:	Common law - personal injury - school camp - no breach of duty.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act, 1946 Civil Liability Act, 2002
CASES CITED:	Richards v Victoria (1969) VR 136 Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Tabet v Gett [2010] HCA 12 Cartledge v E. Jopling & Sons Limited [1963] AC 758
PARTIES:	Jemima Hanna (Plaintiff) Uniting Church in Australia Property Trust (NSW) t/as MLC School (1st Defendant) Camp Somerset Pty Limited t/as Somerset Outdoor Learning Centre (2nd Defendant)
FILE NUMBER(S):	SC 12386/08
COUNSEL:	P. Menzies QC/W. Strathdee (Plaintiff) R. Cavanagh (1st Defendant) G.M. Gregg (2nd Defendant)
SOLICITORS:	Mitchell Lawyers (Plaintiff) Moray & Agnew (1st Defendant) Yeldham Price O'Brien Lusk (2nd Defendant)