Mattock v State of New South Wales (New South Wales Department of Education) (No 2) - [2021] NSWSC 1045

Supreme Court

New South Wales

Medium Neutral Citation: Mattock v State of New South Wales (New South Wales Department of Education) (No 2) [2021] NSWSC 1045
Hearing dates: 3-6 May 2021
Date of orders: 19 August 2021
Decision date: 19 August 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs.

Catchwords:
TORT – Negligence – General principles – Personal injury – School PE class – Where plaintiff was involved in a ‘head knock’ with another student
Defences – Civil Liability Act 2002 (NSW), ss 5I, 5k, 5L – Whether risk of harm was “obvious” – Whether the hybrid game was a “dangerous recreational activity” – Whether there was a significant risk of physical harm – Whether there was a materialisation of an obvious risk
Causation – Whether breach caused damages claimed by plaintiff

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E 5G, 5H, 5I, 5L,5J, 5K

Cases Cited:
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48
CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Collins v Clarence Valley Council [2015] NSWCA 263)
Cooke v Kent County Council (1949) 82 Lloyds LR 823
Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48
Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17
Fox v Wood (1981) 148 CLR 438
Holroyd City Council v Zaiter [2014] NSWCA 109
Jaberv Rockdale City Council [2008] NSWCA 98
Jeffrey v London County Council (1954) 52 LGR 521
Kady v Trustees of the Roman Catholic Church, unreported, NSWCCA, 19 February 1997
King v Western Sydney Local Health Network [2013] NSWCA 162
Kretschmar v State of Queensland (1989) Aust Torts Reports 80-272
Mattock v State of New South Wales (New South Wales Department of Education) (No1) [2021] NSWSC 477
Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301
Nobrega v Trustees of the Roman Catholic Church, unreported, NSWCCA, 23 March 1999
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Phillis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42
Sydney v Kondrajian [2001] NSWCA 308
Thornton v Sweeney [2011] NSWCA 244
Trustees of the Roman Catholic Archdiocese of
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wallace v Kam (2013) 297 ALR 383; [2013] HCA 19
Woolworths Ltd v Strong [2010] NSWCA 282
Wright v Cheshire County Council (1952) 2 All ER 789
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247

Category: Principal judgment
Parties: Daniel Francis Mattock (Plaintiff)
State of New South Wales (New South Wales Department of Education) (Defendant)
Representation:
Counsel:
M Neil QC with R di Michiel (Plaintiff)
M Fordham SC with S Love (Defendant)
Solicitors:
Stacks Goudkamp (Plaintiff)
McCabe Curwood (Defendant)

File Number(s): 2018/190832
Publication restriction: Nil

table of contents

Judgment

Evidence
The plaintiff
Lay witnesses
The defendant’s expert on liability
The medical experts
Economic loss
The plaintiff’s evidence

Pre accident
The school records (Ex 1)

Rugby League experience

The accident
PE or PASS?
The plaintiff’s submissions
The defendant’s submissions
Resolution
The head knock
The first aid office

The expert’s report on liability
After the first aid office
At the beach
The plaintiff’s mother’s evidence
Did the plaintiff lose consciousness?
Pambula hospital (the hospital)
The clinical notes of the hospital dated 29 June 2012
Onset of seizures
Report of Prince of Wales hospital

Liability
The pleading framework
Particulars of negligence of Mr Blair and/or the staff at the school

The defence
The evidence on liability
The Board of Studies NSW
The touch football rules
The expert’s opinion on liability in relation to the game played in the PE class
Resolution

The Civil Liability Act
Obvious risk

Whether the risk of harm was “obvious”
Minors – obvious risk
The plaintiff’s submissions
The defendant’s submissions
Resolution

Was the game a “dangerous recreational activity”?
Significant risk of harm
The defendant’s submissions
Resolution

Materialisation of obvious risk
Section 5I
The defendant’s submissions
Resolution
Duty of care
Breach of duty
Breach of duty

The defendant’s submissions
Resolution
Causation
Neurologists’ joint report and concurrent evidence
The issues where the neurologists do not agree
(i) Was the plaintiff rendered unconscious by the head knock?
(ii) If the plaintiff suffered a mild to moderate traumatic brain injury and suffers seizures as a result of the head knock
(iii) Medical literature
(iv) Post traumatic epilepsy or general epilepsy?
(v) Was the plaintiff predisposed to his condition?
Resolution
Result

Damages
The neuropsychologists’ report dated 2 February 2021
Psychiatrist’s report
Post accident
Jordan Parkes – the plaintiff’s partner
The plaintiff’s work history after the accident

Chris Steiner
The plaintiff’s employment at Mitre 10
Non economic loss

The defendant’s submissions
Resolution

Past out of pocket expenses
Future out of pocket expenses
Future medication and medical consultations
Consultations with neurologist
Consultations with general practitioner

The defendant’s submissions
Resolution
Neuropsychologist consultations
Resolution

Future care
The occupational therapists’ joint report
Domestic care

Past domestic care
Future domestic care
Resolution

Future equipment
Occupational therapy
Resolution
Epi-Assist

Past economic loss
The plaintiff’s submissions
The defendant’s submissions
Resolution
Fox v Wood (1981) 148 CLR 438
Past superannuation
Future economic loss

Future economic loss
The defendant’s submissions
Resolution

Result
Costs

Judgment

There be judgment for the defendant.
The Court orders:
SCHEDULE OF DAMAGES

Judgment

HER HONOUR: The plaintiff seeks damages for personal injury arising out of a head clash he sustained while playing touch football on 29 June 2012 at Eden Marine High School (the school).
The plaintiff is Daniel Francis Mattock. The defendant is State of New South Wales (New South Wales Department of Education).

Evidence

The plaintiff

The plaintiff relied upon his statement dated 16 April 2019. He gave evidence and was cross examined.

Lay witnesses

Zachariah Samuel Slater (Ex C), William Andrew Swires (Ex D), Chris Steiner (Ex E), the plaintiff’s mother Julianne Mattock (Ex F), Douglas Charles Blair (Ex A(1) Tab 6), Pamela Cocks (Ex A(1) Tab 5), Chris Steiner and Jordan Parkes (Ex G) relied upon their statements. They all gave evidence and were cross examined.
The statements by lay witnesses Bradley Cole (Ex A(1), Tab 7), Callan Sinclair (Ex B) and Jake Nikitaras ( Ex A(1), Tab 8) were admitted into evidence. They were not required for cross examination.

The defendant’s expert on liability

Mr Peter Meaney, on behalf of the defendant, provided an expert’s report on liability dated 2 February 2021 (Ex A(1), Tab 15). At the hearing I disallowed the plaintiff’s expert’s report of Ken Armanasco being admitted into evidence: see Mattock v State of New South Wales (New South Wales Department of Education) (No 1) [2021] NSWSC 477.

The medical experts

Neurologists, Professor Bruce Brew on behalf of the plaintiff and Dr Ian Sutton on behalf of the defendant, prepared a joint report (Ex A(1), Tab 18). They gave concurrent evidence.
Occupational therapists, Kelly Walcot on behalf of the plaintiff and Susan Borthwick on behalf of the defendant prepared a joint report dated 5 February 2021 (Ex A(1), Tab 19). They were not required for cross examination.
Neuropsychologists, Associate Professor Jennifer Bacthelor on behalf of the plaintiff and Professor Richard Mattick on behalf of the defendant, provided a joint report dated 2 February 2021 (Ex A(1), Tab 21). They were not required for cross examination.
The plaintiff relied upon the reports of Dr Patricia Jungfer, psychiatrist, dated 28 November 2018, 1 August 2019 and 16 September 2020 (Ex A(2), Tab 27). She was not required for cross examination.

Economic loss

The plaintiff relied upon an economic loss report of Chris Katehos, Forensic Accountant of Furzer Crestani dated 21 December 2019 (Ex A(3), Tab 42). However, at the end of the trial the plaintiff’s economic loss was calculated on a different basis.

The plaintiff’s evidence

Pre accident

The plaintiff relied upon his evidentiary statement dated 16 April 2019 (Ex A(1), Tab 4).
At the time of the accident he was a year 9 student aged 15 years at Eden Marine High school.
The plaintiff says that that he always considered himself to be a normal teenager. He enjoyed playing sports and socialising with his friends. He especially liked playing rugby league.
He represented the school in athletics in the 2013 regional competition, clocking 12.09 seconds for the 100 metres. He also represented the school in high jump, long jump and javelin at Regional and State levels.

The school records (Ex 1)

He says that he enjoyed school and learning. In year 7, he says that he was presented with academic awards for achieving first place in language, and second place in maths and science.
The school documentation, which includes Year 7 Naplan records, indicates a different picture. The plaintiff performed around the school and national average in reading and numeracy. He performed below average in language conventions and writing and his spelling was significantly lower than the national and school average (T56.38-47).
In cross examination, the plaintiff admitted that his school record included some disciplinary issues. Some examples of the disciplinary issues he was cross examined upon are as follows.
On 20 November 2010, the plaintiff was suspended for inappropriately aggressive behaviour and verbally harassing a student and then punching the student (T56.23-28).
In August 2011, a demerit card was issued for failure to follow teaching instructions followed by defiance and insolence. It was reported that the plaintiff made sarcastic a comment to the teacher “you are a fucking good teacher” (T54.1-11). Further letters of unsatisfactory progress and concern were sent to the plaintiff’s mother in October 2011 (T54.28-49).
On 22 June 2012, a further demerit card was issued. It records as follows: “Daniel exploded: “are you fucking kidding?” He also called me “an idiot”. In re-examination, the plaintiff gave the following evidence regarding this outburst at T66.1-17:

“Q. That on 22 June 2012, you told a teacher or said to a teacher "Are you fucking kidding?" and called the teacher an idiot and slammed the door. Why did you do that?
A. Because she was picking on me and my friend.
Q. And what way?
A. I was trying to teach my friend how to do maths in the maths class and she came over and had a go at me for doing it.
Q. Can you tell us what she said?
A. She said it's her classroom, she's teaching him, I need to do my work. I'd already finished my work and then I was trying to teach him how to do maths.
Q. Why were you trying to teach him?
A. Because she wasn’t teaching him. She was teaching the whole class and he needed personal help.”

While I accept the plaintiff’s explanation the outburst was not wise, these examples demonstrate that the plaintiff was displaying bad behaviour at school before the collision.
The plaintiff attended an automotive studies course at Bega TAFE during his final years of school, but his schoolwork was poor. On 27 August 2014, his school records indicate that the plaintiff had not attended school since 26 May 2014.
After school hours, the plaintiff worked part time at a fish and chips shop for about 2½ years. During the holiday season, he worked fulltime 7 days per week. During this time, the plaintiff did not earn more than the minimum amount needed for tax purposes.
Prior to the accident, the plaintiff was living in the family home with his mother. After school hours he would help out around the home. He says that he would bring in the groceries, help with the cooking and clean his room. He would mow the lawn which took about 4 hours per week and cut down trees and split firewood every day after school for about 2 to 2½ hours. He helped with home maintenance and cleaned the cars about one or twice per month for 2-3 hours per car.
Prior to the accident, the plaintiff says that he received the school’s Sportsman of the Year Award.
He says that he enjoyed mechanical pursuits when he was younger, including automotive pursuits. He did metal work at school because he was good with his hands. He considered that it would be useful to be able to do physical work in the mechanical setting.
It was the plaintiff’s intention to complete the Higher School Certificate, albeit he left school in year 11. Once he graduated from high school, he intended to undertake a Bachelor of Mechanical Engineering at the University of Wollongong. After obtaining this degree, he says that he intended to work as a mechanical engineer, including possibly working for the mines. He knew that there was a lot of money to be made with the fly-in/fly-out type of work that was available, and he had members of his family who did that sort of work in the mines in Queensland.
If the plaintiff did not obtain the requisite ATAR grade to qualify for entry into university, his alternate plan was to undertake bridging courses at night in order to qualify for university.

Rugby League experience

The plaintiff had played rugby league from a young age, playing his first game when he was 9 years old (T.30.20-25).
He represented his school in Group 16 in the rugby league competition and played on the wing, centre and fullback.
When he was 15 he played in the Under 18s competition. At 16 he played reserve grade for the Eden Tigers.
At the time of the accident, the plaintiff was halfway through a rugby league season, playing under 18s for Eden Tigers as a winger or fullback (T30.25-35). Zachariah (“Zac”) was also playing in this team (T80.1-16). After the collision, the plaintiff continued playing rugby league for Eden for the rest of the season. He played reserve grade for Eden the following season (T33.40-34.10). The plaintiff gave the following evidence in relation to his experience with balls kicked high in the air (T30.33-50; T31.48):

“Q. As a winger or a fullback, you, on many occasions playing tackle rugby league on a Saturday, had balls kicked high to you?
A. Yes.
Q. It was your job to catch them?
A. Yes
Q. That would happen in two circumstances, one, when you were on attack and you would chase the ball through to try and catch it and regain possession?
A. Yes.
Q. And score, hopefully?
A. Yes.
Q. Or in defence when someone would put up a high ball in the hope that they could come through and catch it?
A. Yes.
Q. You had been coached, for your Saturday rugby league games or Sunday rugby league games, to jump for the ball to contest?
A. Yes.
Q. Had you been coached to call for the ball, put a name on it?
A. Not in games.
Q. Was it your practice to call for the ball if you were going to jump for it?
A. No.
Q. In any event, on numerous occasions in tackle games of rugby league on a Saturday or Sunday for Eden, you had contested high balls.
A. Yes.
Q. You also played for the zone representative rugby league?
A. Yes.
Q. Again as a winger or fullback?
A. Yes.
…
Q. Had you played any Australian Rules at school?
A. Yes.
Q. Did you play that as a representative thing for the school or in class?
A. It was like gala days.
Q. In those games you had been taught the concept of marking the ball or catching it?
A. Yes.
Q. And contesting the ball in the air?
A. Yes.”

The accident

Both the plaintiff and the defendant, in written submissions, highlighted the evidence that they say supports their case. I have included this evidence in order to make my factual findings.
On the 29 June 2012 at about 2.40 pm during (in what I will neutrally describe at this stage, as “the physical activity class”), a head knock (sometimes referred to in the decision as a collision) occurred between the plaintiff and Callan Sinclair (“Callan”) The class was under the supervision of Mr Blair, an experienced physical education teacher who was also acting as the referee. It was the last period of the day.
The recollections of the witnesses vary. It is in dispute whether the class was a Physical Education (“PE”) or Physical Activities and Sports Studies (“PASS”) class.
It is the plaintiff's evidence that the accident occurred during a mixed gender PASS class containing the top graded students (T29.5-30.5). During examination in chief, Zac gave evidence that there were boys and girls involved in this game (T79.10). Callan’s evidence was that he was in the same Year 9 PASS class as the plaintiff in 2012 which was taught by Mr Blair.
During cross examination, the plaintiff described the game as touch football with added elements from rugby league. This included using six phases of play and the use of kicking on the fifth phase (T28.20-28.45). He later agreed with the definition of the game as 'rugby league without tackling' (T30.15). In cross examination, Zac stated that the game played was a hybrid game of touch football and rugby league (T82.20-82.35).
It is Mr Blair's evidence that on the afternoon of 29 June 2012 he ran a 'Hybrid/Creative Games' PE class for a group of Year 9 students. Hybrid/Creative Games is a unit in the PE program which involves mixing the skills and rules of different games such as AFL, soccer, NRL, touch football, rugby union or league into a new game (the hybrid game). There were approximately 28-30 male students in the Year 9 class. The plaintiff was in this class.
When asked during cross examination, whether there were any girls in this class, Mr Blair stated that he was reasonably positive that there were no girls present. This was because PE classes, unlike PASS classes, only contain one gender. To Mr Blair's recollection, this was the highest graded boys Year 9 PE class (T130.5).
It is common ground that Mr Blair’s normal practice was to start the game by having a high ball kick-off.

PE or PASS?

As I said earlier, it is in dispute as to whether the accident occurred during a PE or PASS class. However, both parties accept that regardless of which class this occurred in, it was the top graded students for this class.

The plaintiff’s submissions

Senior counsel for the plaintiff submitted that it is the plaintiff’s version of events which should be accepted. This is based upon the following reasons: Firstly, of the plaintiff’s own recollection that the accident occurred during a PASS class which is corroborated by Callan's evidence that he was in the same PASS class as the plaintiff; secondly, Zac's recollection that it was a mixed class of boys and girls, together with the evidence from Mr Blair who stated that PE classes were gender specific, suggests that it was a PASS class; thirdly, Mr Blair's evidence should not be accepted in circumstances where his memory of the incident was not outstanding (T132.31-47) and the inconsistencies with Mr Blair’s account and the other accounts given (T130.1-7); finally, the plaintiff submitted that the existence of touch football as a unit of study in the PASS syllabus suggests that this accident occurred during a PASS class (Ex A(4) Tab 64). I have taken these submissions into account when making my findings below.

The defendant’s submissions

I have included the defendant’s submissions earlier as to what is says are the factual finds this court should make.

Resolution

Despite the plaintiff's criticisms of Mr Blair's memory of the incident, it is my view that Mr Blair as an experienced sports teacher would have been more aware and attuned to the type of class he was teaching. He would have been in the best position to recall whether it was PE class or a PASS class. I accept and prefer Mr Blair’s evidence over those who say it was a PASS class. I make a finding that it was a PE class comprised of the top graded male students. The general description of the game played was that it was a hybrid of touch football and rugby league and AFL. I accept the plaintiff’s description of the game as ‘rugby league without tackling’ (except for the kick-off). The game was initiated by a high ball kick which was contested by the opposing players. A defensive player would ‘tap’ an offensive player, as in touch football, constituting a tackle. There would be 6 phases of play with the option to kick on the final phase. Even if I am wrong and it was not a PE class and it was a PASS class, the game that was played was the “hybrid game”.

However, contrary to Mr Blair’s recollection that the head knock occurred in the latter part of the game, I accept and prefer the evidence of Callan, Zac and the plaintiff that the head knock occurred immediately after Zac kicked the high ball to start the game.

The head knock

On the day of the accident it is common ground that Zac started the game with a high ball kick-off. The plaintiff went running after the ball. Both Callan and the plaintiff jumped up to intercept the ball to gain possession for their respective team. Both their heads collided when they were running at significant speed. The plaintiff felt Callan’s teeth going into his left temple.
What happened next is also in dispute. The plaintiff deposed that he was knocked unconscious and when he awoke several minutes later, Mr Blair was present. His evidence is that there was blood going down his cheek, he was concussed and disorientated. I accept there was blood going down his cheek.
Callan in his evidentiary statement described the incident a “nasty collision” and said that he was also knocked out for a short period of time. He recalls that the plaintiff’s injuries were worse than his, but he cannot remember how long they were on the ground.
During cross examination, Mr Blair gave evidence that he was 15-20 metres away from the collision when it occurred. There was only a short period of time that elapsed between when the head clash occurred and when he attended the vicinity of the accident (T134.45–T135.10).
During cross examination, the plaintiff described his memory of events following the collision as partial or incomplete (T34.40–T35.15). He did not recall Mr Blair conducting any assessments of him following the collision (T36.5-40).
Mr Blair’s evidence is that he assessed the plaintiff to check for concussion and a possible head injury. To assess the severity of the plaintiff’s head injury, Mr Blair used a process called “TOTAPS” (talk, observe, touch, active movement, passive movement and stand) (T137.45). He was qualified in first aid. He stated that, through this qualification, he had some idea of what was happening (T131.15). It is Mr Blair’s evidence that the plaintiff was standing up when he conducted these tests. He asked the plaintiff to close his eyes (T135.35). As part of this TOTPAS process, Mr Blair says that he asked the plaintiff a number of questions to determine how coherent he was, whether he was aware of where he was and what had happened. These questions may have included what time of day it was and what field they were playing on (T130.40). The plaintiff answered these questions and was oriented as to where he was (T130.45).
As part of this assessment process Mr Blair performed further tests which he says can be indicative of serious head injury (T130.20). One of these tests involved asking the plaintiff to close both eyes. He then tapped above one of the plaintiff’s eyes for him to open that eye. When the plaintiff opened that eye, he could then check to see if his pupil was fixated or whether it adjusted according to the amount of light that went into his eye. Mr Blair also recalls that he may have checked the plaintiff for tracking. This involves moving his finger across the plaintiff's eye and observing if the plaintiff’s pupil follows his finger (T130.25-30).
After performing these TOTAPS assessments, Mr Blair was of the opinion that the plaintiff was dazed but not seriously injured (T132.20). He also decided that the plaintiff should not continue playing the game and should be observed in another environment, namely the first aid office at the school (T137.45). He did not recall any blood on the plaintiff's temple following the collision (T137.25).
Following the collision, Mr Blair requested that Zac and Bradley Cole (Brad) assist the plaintiff to the first aid office which was “a couple of football pitches away”. Brad assisted the plaintiff to the first aid office and remained there for a short time before being sent back to class. It seems that Brad carried the plaintiff’s bag to the first aid office. It is the plaintiff’s evidence that he had to lean on Zac because he could not balance and could barely stand on his feet. Zac’s evidence is that he was not at school that day. So it may be that Zac’s memory is incorrect or more likely it was another pupil who assisted the plaintiff to the first aid office. However, nothing turns on this factual inconsistency.

The first aid office

When the plaintiff arrived at the first aid office, he says that the first aid officer, Ms Cocks told him that he could just wait and catch the bus home as there was only 20 minutes left until the end of the day. It is common ground that Ms Cocks did not conduct any concussion tests. The plaintiff’s evidence is that he was very drowsy, nauseous and in a great deal of pain. He felt like he was going to throw up. Despite this, he says that Ms Cocks did not seem concerned about his injuries, did not call an ambulance, nor did she attempt to call his mother. It is common ground that Ms Cocks did not call an ambulance. The rest of the plaintiff’s account is account is disputed by Ms Cocks.
Ms Cocks’ evidence in her statement (Ex A(1), Tab 5) is that she recalls the plaintiff coming into the office with a friend at approximately 3:00 pm on the day of the incident. The plaintiff had a cut on his forehead and that she took him and his friend into the first aid room.
She recalls that the plaintiff said words to the effect:

“I was playing sport and I collided with another student. His tooth hit my head.”

She cleaned the cut on the plaintiff’s head and put a steri-strip over the cut. There was not a lot of blood from the cut. She believed it to only be a minor incident. The plaintiff did not tell her that he was in pain or that he felt nauseous. He was talking clearly and did not appear to be unwell.
After she cleaned the cut, she recalls saying to the plaintiff words to the effect:

“I will phone your mother to come and collect you.”

He responded with words to the effect:

“You won’t be able to get a hold of her. She’s out of range.”

As the plaintiff’s mother was his only listed point of contact, she said to him words to the effect:

“Do you know the phone number of someone else I can call to come and pick you up?”

She says that the plaintiff refused to provide her with alternative contact details and then said words to the effect:

“I’ll be alright. I will get the bus home.”

She does not recall if she tried to contact the plaintiff’s mother.
Ms Cocks said that the plaintiff seemed to be in a hurry to get home and did not want to stay in the school office. However, the plaintiff says that Ms Cocks insisted that he go home on the bus and that “she was worried about the end of school and wanted me out”. In cross examination, Ms Cocks denied that she was worried about the end of school and wanted the plaintiff out. I prefer and accept Ms Cocks’ evidence as it is consistent with her belief that the plaintiff’s injury was a minor one, he told her that she could not contact his mother as she was out of mobile phone range, which was confirmed by the plaintiff’s mother as being true.
Before the plaintiff left, Ms Cocks said words to the plaintiff’s friend to the effect:

“Can you please take Daniel to the bus stop and make sure he gets on the bus home.”

She recalls being satisfied that the plaintiff was okay to travel on the bus home. At that time, he was able to answer questions and did not appear to be dazed.
Ms Cock’s evidence is that she would not have let the plaintiff travel on the bus home if she thought it was unsafe and that he had suffered a serious head injury. Because she considered it a minor injury, she did not prepare an incident report in relation to the incident.
In cross examination, Ms Cocks gave evidence that she advised the plaintiff to catch the bus, she requested another pupil to walk him to the bus stop because he was very unstable on his feet. His friend assisted him to the bus stop which was about 200 metres away.
The Particulars of negligence pleaded in the statement of claim in relation to the first aid treatment rendered to the plaintiff are as follows:

Failure to provide adequate and appropriate first aid care post-incident exposing the plaintiff to potentially serious consequences.

Failure to provide appropriate monitoring and supervision of an injured and/or concussed person such as the plaintiff.

The expert’s report on liability

During the hearing, I disallowed the report of Ken Armanasco dated February 2018 prepared for the plaintiff being admitted in evidence: see Mattock v State of New South Wales (New South Wales Department of Education) (No 1) [2021] NSWSC 477.
The defendant relied upon the expert’s report of Mr Meaney. Mr Meaney is a senior lecturer, Associate of the School of Education, RMIT University Melbourne, with special research interest in teacher education, sport psychology, physical and sport education and competitive sports. He has taught the safe practices and technical practical skills involved in the teaching of physical and sport education since 1967. He has provided an expert’s report dated 2 February 2021, in which he provides his opinions as to firstly, whether the PE class was conducted appropriately; and secondly, was the first aid response appropriate. He gave evidence and was cross examined.
It is Mr Meaney’s opinion that Mr Blair’s first aid response was appropriate. Mr Blair checked for concussion. At no stage did he indicate that the plaintiff was unconscious and his assumption is borne out by my earlier findings. He opines that teaching or in any sport generally, if someone is unconscious or non responsive for even the slightest numbers of second, an ambulance has to be called and an ambulance would have been called onto the field if the plaintiff had been unresponsive.
As to the first aid response, Mr Meaney considered that the first aid response provided by Ms Cocks, the first aid officer at the school was also appropriate given that the plaintiff’s mother’s mobile phone was out of range and the plaintiff apparently refused to give another number. I accept and agree with Mr Meaney’s opinion. He has based his opinion upon my earlier findings.
The allegations in the plaintiff’s statement of claim that the defendant’s failure to provide adequate first aid care post incident exposed the plaintiff to potentially serious consequences and failure to provide appropriate monitoring and supervision of an injured and/or concussed person such as the plaintiff fails.

After the first aid office

When the plaintiff and his friend arrived at the bus stop, the plaintiff says that he asked him if he was okay to wait for the bus alone because he had to leave to get home. The plaintiff says that he could not really process what he was being told so he just agreed.
When the bus arrived, the plaintiff says that tried to get onto the bus but he fell backwards down the stairs. As a result, the bus driver refused to let him travel on the bus. He then sat down in the gutter.

At the beach

The plaintiff’s home was at least 12 kilometres away from the school. He knew if he could get to one of his friend’s houses, he could phone his mum and she would pick him up. However, sometime after sitting down in the gutter, he wandered towards the beach because he could not get his bearings.
Both Billy and Zac saw the plaintiff near the beach. After Zac came out of the surf, much to his surprise he saw the plaintiff sitting at the beach. Zac asked the plaintiff “what was the matter?” The plaintiff replied that he did not feel well. Zac then asked him how he was going to get home and the plaintiff said that his family were going to pick him up. Billy had also observed the plaintiff when the plaintiff was sitting down near the beach “dazed and confused”. Billy thought that the plaintiff seemed in trouble. Either Billy or Jake called his mother so she could pick him up. They waited until she arrived.
The plaintiff says that he has no memory of the events from between 3:30pm and 5:30pm. Sometime after this, his mother arrived at the beach and found him with Billy.
As I previously stated, Jake’s evidence is that he did not attend school on the day of the accident. He also has no recollection of going to the beach or seeing the plaintiff on this day. Interestingly, the plaintiff's mother says that it was Jake that called her from the beach and she had two missed calls from him. It is sufficient to say that either Zac, Billy or Jake called the plaintiff's mother and nothing turns on this, but it was not the plaintiff who called her.
The plaintiff’s mother was at home most of the day. She had left home at 3:45pm to tutor a student. At that time, her mobile was out of range. This confirms Ms Cocks version of what the plaintiff told her at the first aid office.

The plaintiff’s mother’s evidence

When the plaintiff’s mother arrived at the beach, the plaintiff was sitting with Jake and Billy in Billy’s car. She saw that he was injured and bleeding from his head. In cross examination, the plaintiff’s mother could not recall who it was who gave her the information regarding the details of how the injury occurred (T104.5-30).
While she was driving the plaintiff to Pambula hospital, she says the plaintiff “passed out on two occasions”. She says that the plaintiff told her he could not remember what had happened from when he was injured. When they arrived at the hospital emergency at 5.50 pm, she says that the plaintiff’s speech was slurred and he was finding it hard to walk. Her evidence is that the drive from Eden to Pambula is around 11 kilometres and takes about 10 minutes driving time.
When they arrived at the hospital, the plaintiff’s mother says that the nurse was “shocked that no ambulance had been called since as this was a clear case of concussion”. I think this statement alleged to have been made by the nurse is most unlikely because at that time of triage the plaintiff had not yet been examined by the doctors and the subsequent clinical notes reveal a different picture.
The plaintiff’s mother’s evidence is that the plaintiff’s temple was still bleeding at this time. The hospital staff cleaned it up and put steri-strips over the cut. It is common ground that no head x-rays were taken and that the plaintiff had to stay in hospital under observation for four hours before being discharged.
On 6 July 2012 (a week after the head knock), the plaintiff’s mother sent an email to Ian Moorehead, the principal of the school, expressing her concern as to the plaintiff’s treatment after the head knock. The plaintiff’s mother had been a teacher at the school. She was cross-examined on the content of the email and she admitted that some of what she wrote had come from other sources. The email reads as follows:

“…I found my son at the beach, he was obviously concussed his eyes were wide like possums and his speech was slurred and he was not making much sense. He told me he had a head clash at school while playing touch and that he was told by the school staff that he might need stitches in his head and that he might have concussion.
I took my son to Pambula hospital straight away. He could hardly walk and looked as if he was drunk by the way he was staggering.
The nurse checked him over and asked why hadn’t the school called an ambulance for him because it was an obvious case of concussion. We stayed at the hospital for the next 3 hours waiting for them to finish their assessments. They also sent us home with a card so that if, after the stemitil wore off and he began to vomit again, that I could take him straight back to hospital.
I appreciate that the office is a busy place but I do not feel that the correct protocol was followed for head injuries, and want to know why my son was allowed to leave the school unassisted when he could not even walk well enough to hop on the bus. He needed to sit in the gutter because he felt like he was going to either pass out or vomit.” (the email)

In cross examination, the plaintiff’s mother could not recall where or when or from who she obtained the information about the incident she set out in the email. As to how she received the information that the head knock had occurred she gave evidence (at T97.22-26):

Q. Whilst you were driving Daniel to the hospital from the beach, can you recall what if anything he said to you about what had happened to him?
A. Daniel passed out twice on the way to the hospital and I was shaking him and trying to keep him awake. He didn't really say anything; he couldn't remember what had happened.

Then at T102.11-18, in reference to the contents of the email:

Q. You will see, "He told me that he had a head clash while playing touch."
A. Yeah.
Q. He told you that sitting in Mr Swires' car at the beach?
A. I don't remember if he told me that at the beach but I got that information.
Q. Yes, from Daniel?
A. From Daniel.

At T103.10-14:

Q. You record in this statement that he, that is Daniel, isn't it, told me he had a head clash?
A. Yeah, but that wasn't till the next day. This statement is seven days after it happened.

At T104.21-29:

Q. He was racing to get the ball, clashed heads with Daniel. You see that?
A. Yeah.
Q. Daniel told you that?
A. I don't know if it was my son who told me or if it was Zac who told me because like I said I used to teach at the school and I found out what went on, ‘cause my friend - my son's friends used to come over and I wanted to know what happened to him.
Q. Sitting here today you don't remember who gave you that piece of information?
A. No.

It is my view that the plaintiff’s mother’s statement is mainly an amalgam based on what she had been told by others.

Did the plaintiff lose consciousness?

There is an important factual dispute as to whether the plaintiff was rendered unconscious by the head knock.
Returning to the plaintiff and Callan’s evidence, the plaintiff says that he was knocked unconscious for several minutes. Callan’s evidence is that following the collision he and the plaintiff were lying on the ground for an unspecified period of time (Ex B). I do not accept their evidence as being accurate because if they were unconscious they would not have been able to gauge as to the duration. That evidence conflicts with that of the PE teacher. As Mr Blair was 15-20 metres away when the head knock occurred, it is most unlikely that he would have failed to notice such a serious situation where both students were rendered unconscious and both lying on the ground unconscious albeit for a short period of time.

Pambula hospital (the hospital)

To recap, the plaintiff and his mother arrived at the hospital at about 5.30pm. The plaintiff was triaged. The plaintiff’s mother stayed with him until he was discharged.

The clinical notes of the hospital dated 29 June 2012

This clinical note entry is critical to the neurologists’ opinions (referred to later in this judgment).
The clinical notes record (Ex A(3), Tab 52):

“1831 hit to l) [left] temple region, felt nauseous but no Loc [loss of consciousness] @ time
Now feels unsteady on feet,
Speech slow, some ongoing nausea, no memory
Loss, vision Ⓝ [normal] says he can’t feel over area of blow.
Brief sleep en-route to ED….”

The clinical notes also record that the plaintiff’s Glasgow Coma Scale at that time was 15/15 (the best achievable outcome).
No head x-rays were taken, and the plaintiff stayed at the hospital under observation for 4 hours. At around 10:30 pm, plaintiff was discharged. His mother “kept an eye” on him over the next 72 hours. The plaintiff slept for most of that time.
As to whether the plaintiff was rendered unconscious by the head knock, I make a finding that he was not, based on the following evidence. The fact that the plaintiff was not rendered unconscious by the head knock is supported by Mr Blair and the contemporaneous clinical notes from Pambula hospital. The clinical notes record that the plaintiff did not suffer unconsciousness at the time of the incident. Also, at the time of the examination the clinical notes of the emergency department indicate that the plaintiff was alert. Although the plaintiff’s mother stated that the plaintiff passed out on two occasions, the clinical records indicate that the plaintiff had a “brief sleep” en route to the emergency department.

Further, when the plaintiff was cross examined as to whether or not he lost consciousness the following exchange took place (T 166.33-50):

"Q. What I'm suggesting to you is that you were directly asked?
A. The trip to the hospital I didn’t remember.
Q. What I'm suggesting to you is that you were directly asked whether or not you had lost consciousness by the hospital staff, your answer was no. Do you agree or disagree with that?
A. Disagree.
Q. And if someone's written that in medical records, do you say that's wrong?
A. I said I don't know.
Q. So, you don’t know whether or not you lost consciousness, is that what you're saying?
A. No, that's what I was saying.
Q. And sitting here today, you still don’t know whether you lost consciousness or not do you?
A. No.”

Hence, I make findings that the plaintiff does not know whether or not he lost consciousness after the head knock. Mr Blair did not observe that either the plaintiff or Callan were rendered unconscious after the head knock. Mr Blair immediately conducted tests to assess the severity of the plaintiff’s head knock and concluded that the plaintiff was dazed but not seriously injured. At the first aid office, Ms Cocks spoke to and observed the plaintiff. She formed the opinion that the plaintiff had suffered a minor injury. The only evidence that the plaintiff lost consciousness was from the plaintiff’s mother who said that the plaintiff “passed out twice” on the drive to Pambula hospital, but it was recorded in the clinical notes as he had “brief sleep en-route to ED.” It is more likely than not that while the plaintiff was not rendered unconscious as a result of the head knock, but I accept that he may have suffered concussion (see Dr Sutton’s evidence later in this decision).

Onset of seizures

There is also a dispute as to when the onset of the plaintiff’s seizures first occurred.
The plaintiff recorded in his statement that his first seizure occurred about 8 days after the accident when he was camping with his friends. He had a seizure in his tent (Ex A(1) Tab 4 at [53]). He stated that he suffered another seizure shortly after that in November 2012 (Ex A(1) Tab 4 at [54]).
Despite initially agreeing that his first grand mal seizure occurred a few days after the accident (T23.15), the following exchange between counsel for the defendant and plaintiff took place (T47.15-35):

Q. With the camping, just so we’re clear about it because I can only work from the records, I have a record from hospital of the 25th of the eleventh 2012, as best as I understand you’re telling me, the night before that, you’d been out all night with some friends, and when you got to the Caltex service station to try and get into the restaurant in the morning, you had a seizure?
A. I had a seizure once I was in the café, yes.
Q. From there, you were taken to Pambula Hospital?
A. Yes.
Q. Whilst you’re at Pambula Hospital [on 25/11/2012], you’re asked a series of questions, and one of the things you told them about was that someone had seen you have a fit about three weeks previously?
A. Yes.
Q. That was when you’d been camping?
A. Yes.
Q. Had you been out late at night that night?
A. Yes.

The plaintiff’s admission to the hospital following his seizure at the Caltex service station is recorded in clinical notes dated 25 November 2012 (Ex A(3), Tab 52 at [647]). These notes indicate an episode of head trauma without loss of consciousness approximately five months earlier. The notes also record an episode that had occurred approximately three weeks earlier (ie, 4 November 2012) when it was likely that the plaintiff had a nocturnal generalised seizure while camping with friends.
During this hospital admission dated 25 November 2012 to the hospital, a CT brain study was conducted (Ex A(3), Tab 52 at [651]). No abnormalities were documented.
Dr Reid from Curalo Medical Clinic (the plaintiff’s former GP) referred the plaintiff to Dr Mark de Souza, paediatrician at Canberra hospital, who the plaintiff saw on the 10 January 2013. The report from this consultation records as follows (Ex A(3), Tab 50 at [596]):

“[the plaintiff] is said to have had 2 seizures... Both events occurred in the early morning after he had been out drinking and had been awake for most of the night. The first episode occurred in a tent and was observed by one of his friends. The second occurred at a restaurant and was described by onlookers as being a ‘fit’… the last seizure had occurred 2 months ago, and the first one was a month before that.”

It was noted by Dr de Souza that a CT head scan (undertaken at Pambula hospital) showed no structural abnormality and that a trial of Tegretol had led to unacceptable side effects. This history does not refer to an epileptic seizure occurring 8 days after the head knock.
The first time the plaintiff’s mother became aware of him having a seizure was after he was hospitalised following the seizure at the Caltex service station. On 1 April 2013 was the first time she actually witnessed the plaintiff having a seizure when he was in the shower. She had to get him out of the shower and call an ambulance (Ex F).
The subsequent hospitalisation on 1 April 2013 is recorded in the clinical notes from the hospital (Ex A(3), Tab 52 at [628]). These clinical notes record that the plaintiff had suffered a seizure while in the shower and he had hit is head. The notes also record that he had suffered two previous seizures and that these past seizures were induced by ‘over doing it’ and ‘drinking and partying too hard’.
During cross examination, the plaintiff agreed that during the initial onset of seizures, it was usually after a night of drinking and not sleeping when they occurred (T48.12-15).
The plaintiff was then referred by his current general practitioner, Dr Rowlands (the GP) of the Curalo Medical Clinic to Dr Andrew Hughes, Neurologist at Canberra hospital.
On 20 June 2013, the plaintiff saw Dr Hughes and was referred for an electroencephalogram (EEG) which took place on 8 July 2013. Again, no abnormalities were found.
During the period, before the plaintiff consulted Dr Hughes on 1 August 2013, he suffered two more seizures. One when he was in the car being driven to a football game (rugby league) and another at 2:30am when he had been up late watching movies (T50.20-40).
Clinical notes from the hospital dated 3 September 2013 indicate that the plaintiff was admitted after having been witnessed to have suffered a seizure (Ex A(3), Tab 52 at [624]). The records indicate that he suffered lacerations on his tongue. These records also indicate that his first seizure occurred in September 2012 and that he had seven seizures since then.
On the 3 January 2014 the plaintiff was hospitalised after he suffered a seizure that caused him to fall off the top bunk of his bed and cut the right side of his head (T49.20). These clinical notes from this admission indicate that he had missed his last three doses of Epilim (Ex A(3), Tab 52 at [616]).
It is not disputed that throughout 2015 and 2016, the plaintiff experienced seizures on average every 2-6 weeks, which he says lasted for 20-30 minutes. As his seizures continued to increase in frequency, and he was referred back to Dr Hughes in June 2016.
On 7 July 2017, the plaintiff was admitted to Shoalhaven hospital due to suffering two more seizures. The initial seizure occurred around 9:30 pm. The second seizure was around 1:00 pm on that day. Following the second seizure, the plaintiff fell to the ground which caused his two lower teeth to be loosened. A CT head scan was undertaken in which no abnormalities were detected. The clinical notes state that “if he sleeps for more than one hour, he usually remains seizure free” (Ex A(3), Tab 55 at [721]).

Report of Prince of Wales hospital

On 3 June 2019, the plaintiff was admitted to Prince of Wales hospital for a review by Dr Robert Morton, a neurology consulting clinician. His notes record (Ex A(3), Tab 46):

“HPC [History of presenting complaint]
Head injury sustained playing touch football in school -2012.
Head to head strike, nil LOC [loss of consciousness] at impact.
Reports ongoing dizziness – school bus driver would not allow on the bus as thought to be intoxicated.
Walked to beach from bus stop. Texting friend, but mid message ‘passed out’ on beach (from approximately 3.30pm-5.00pm.
…
Seizures commenced 1 week following this trauma
Significant drinking + sleep deprivation at time of first seizure Associated tongue bite Seen by neurologist and commenced on AED following second seizure
…
Febrile convulsions around 6 months - 10 seconds in length, associated with fevers
…
Admitted to neurology ward and video EEG monitoring applied
Sleep deprived
Nil seizure activity recorded throughout admission
Video footage of seizures (from home recorded by partner) reviewed on epilepsy ward round - appears to be generalised epilepsy
…
Impression: This is likely generalised epilepsy, not related to head trauma sustained in during head collision.
…
2. Patient is not to safe to drive
…
Please follow up with GP. Dr Rob Morton:- to kindly arrange MRI Brain …
6. Patient is not to drive until review with Dr Zentner in 3 months – as per discussion”.

Aside from the history the plaintiff gave in his statement dated 16 April 2019 (some 6 years after the collision), 3 June 2019 is the first time the plaintiff has given a history to the medical practitioners about suffering a seizure 8 days after the head knock. What the plaintiff says in his statement as to when his first seizure occurred is inconsistent with the contemporaneous records.
So far as the report, dated 3 June 2019, records that the plaintiff “passed out on the beach (from approximately 3.30 pm-5.00 pm)” that accords with the plaintiff’s evidence. However, neither Zac nor Billy witnessed him being unconscious when he says he was. The plaintiff’s memory of what occurred at the beach and later repeated to Dr Morton, particularly as to timing is, in my view, unreliable.
The defendant submitted that the objective evidence is that there was a delay of some months before the commencement of seizures. The plaintiff was taken to Pambula hospital on 25 November 2012 after having a seizure at breakfast (at the end of a night out). The history refers to a smaller seizure “a couple of weeks ago”. On both occasions, seizures occurred after the consumption alcohol and sleep deprivation.
From the timeline recorded in the medical records, it is my view that it is more likely than not that the onset of the plaintiff’s seizures occurred around early November 2012, not 8 days after the incident.
The plaintiff has been diagnosed with generalised seizures, non-traumatic in origin, at the Prince of Wales Hospital Epilepsy Unit by Drs Zentner (neurologist) and De Souza (paediatrician).
Over the years, various medications have been tried by the plaintiff. His says that he ceased taking them because he suffered unwarranted side effects. The plaintiff has had varying periods of being seizure free and at one point achieved a sufficient seizure free period to obtain a driving licence through lifestyle modification and compliance with treatment. The plaintiff in his younger years has elected, up until recently, to go for long periods without taking medication.
It is common ground that in the last few years, the plaintiff has had seizures, on average, once a month (T60.15).
Since he has been in a relationship with his partner Jordan Parkes and more recently now that they have had a baby, the plaintiff is prepared to try new medication and adhere to taking them as prescribed.
I will return to the topic of whether the head knock caused epilepsy and the neurologists’ opinions after I have considered liability.

Liability

My earlier findings are that it was a PE class comprising of the top graded males in Year 9. Mr Blair, the PE teacher, instructed the PE class, including the plaintiff to participate in a hybrid game mainly based on touch football. A football is kicked from the ground high into the air when students from either team compete to catch the football. Apart from the initial ball up the only contact between the students involved a defensive player tapping an offensive player, constituting a tackle, one of a series of 6. Every set of 6 tackles that a team had possession, they had the opportunity to use a kick to gain ground, force an error from the opposition, regain the ball or score a try.

The pleading framework

Earlier in this judgment I have dealt with the claim in negligence in relation to the school’s first aid treatment rendered to the plaintiff after the head knock. Those allegations were not made out.
As to the PE class, the plaintiff in his statement of claim pleads as follows.
The manner in which the subject touch football game was commenced constituted a risk of harm to students, including the plaintiff, which risk was foreseeable, not insignificant, and was a risk that reasonable persons in the position of the staff at Eden Marine High School should have taken precautions to protect students from (S/C [11]).
By reason of the risk of harm created by Mr Blair, the plaintiff while attempting to catch the football from the high ball kick off collided with another student Callan Sinclair on the other team (S/C [12]).
As a consequence, the plaintiff sustained significant injury and suffered loss and damage. (S/C [13]).
The plaintiff’s injury, loss and damage were caused by the negligence of Mr Blair, teacher at Eden Marine High School (S/C [14]).

Particulars of negligence of Mr Blair and/or the staff at the school

Implementing an unsafe game of touch football.

Failure to appropriately and/or safely commence a game of touch football.

Failure to comply with the TFA Playing Rules and Referees Signals, 7^th Edition 2007, being breaches of Rules 6.2, 6.3 and 6.6.

Failure to assess and appropriately manage any and all foreseeable risks of an activity.

Failure to identify, assess and mitigate the risk of injury arising from the manner in which the subject touch football game was conducted.

Failure to conduct any risk assessments.

Exposing the plaintiff to an unacceptable risk of injury which could have been avoided by compliance with the TFA Playing Rules and Referees Signals, 7^th Edition 2007.

Allowing for the game of touch football to be played in the unsafe manner alleged.

The defence

By defence filed 19 October 2018, the defendant relevantly pleads:
The defendant does not admit that the plaintiff sustained significant injury, loss and damage as alleged in [13] of the S/C, or at all (D [7]).
The defendant denies that it, its servants or agents, was negligent as alleged in [14] of the S/C, including each subparagraph (D [8]).
In response to [15], the defendant (D [9(a)-(b)]:

Denies that Mr Blair was negligent as alleged or at all.

The defendant denies that the plaintiff is entitled to damages, interest and costs as alleged in [16] of the S/C, or to any relief at all (D [10]).
The plaintiff then pleads Part 5 of the Civil Liability Act as follows.
Further, or in the alternative, the defendant relies on the provisions of section 5B of the Civil Liability, and says that (D [11(a)-(d)]):

it did not know of the risk;

it ought not to have known of the risk within the meaning of the Act;

the risk was insignificant; and

a reasonable person in the defendant’s position would not have taken any precautions.

In the alternative, the defendant relies upon the provisions of ss 5F, 5G and 5H and says that if there was a risk (which is not admitted), it was an obvious risk (D [12]).
In the alternative, the defendant relies upon s 5I, and says that if there was a risk (which is not admitted), it was an inherent risk involved in the participation of school sport (D [13]).
Further and in the alternative, in response to the statement of claim as a whole, the defendant says that at the material time the plaintiff was participating in a dangerous recreational activity and the risk of injury was obvious within the meaning prescribed to those terms by s 5K such that the defendant is not liable for any harm suffered by the plaintiff pursuant to s 5L (D [14]).

The evidence on liability

The plaintiff also referred to the Physical Activity and Sports Studies Course Years 7 to 10 syllabus as at 2004 that is set out at CB 896-954 (the syllabus).

The Board of Studies NSW

The following passages from the Board of Studies were highlighted by the plaintiff.
In relation to the “Physical Activity and Sports Studies Content Endorsed Course Years 7-10 Syllabus” (“Physical Activity Syllabus”) as at September 2004 is set out at CB 896-954. They are as follows:

Sample 100-hour course

Term 1

Physical activity and sport in Australia

Unit description

Modules: Australia’s sporting identity

Touch/Oz tag

Module: Participating with safety

• managing risk

• critique guidelines or policies for safe participation in a chosen physical activity, sport or recreation context

Area of Study 1 Foundation of Physical Activity

Objective 1

Students will develop a foundation for efficient and enjoyable participation and performance in physical activity and sport.

Students learn about:

Students learn to:

• participate in physical activity and sport with safety and consideration for themselves and others

I accept that these are extracts from the Physical Activity Syllabus.
The plaintiff also referred to the touch football rules which he asserted are relevant here and were breached by the defendant.

The touch football rules

Rules 6.2, 6.3 and 6.6, Touch Football Association Playing Rules and Referees Signals, 7^th ed 2007 read:

“Rule 6.2 - Starting a game - the attacking team is to start the match with a tap at the centre of a halfway line following the indication to commence play from the referee. All players of the attacking team are to remain in an onside position until the ball has been tapped.
Rule 6.3 - the tap is taken by placing the ball on the ground at or behind the mark releasing both hands from the ball, tapping the ball with either foot a distance of not more than 1 metre, and retrieving the ball cleanly. Any player of the attacking team may take the tap. Any onside of the attacking team may retrieve the ball once the tap has been taken.
Rule 6.6 - The ball cannot be kicked or played with the foot except when taking a tap or a roll ball. The half may use the foot to control the ball.”

The expert’s opinion on liability in relation to the game played in the PE class

Mr Meaney, the defendant’s expert on liability, described the game that the plaintiff was playing as a hybrid game. It included three elements, Australian rules football, NFL and touch football. This accords with my earlier findings.
Mr Meaney’s opinion is that the hybrid game played fitted nicely into the PE program at the school and it was part of the Board of Studies in NSW K to 10 framework. It fits into the syllabus and also into the scope and sequence planning of the physical education program. It also fits in with the lesson intentions at the time. In teaching, teachers must state what their lesson intentions are in order to do some evaluation at the end.
When asked by what means was the game commenced, Mr Meaney referred to Mr Blair’s written statement that he employed a ball up (this accords with my findings). During the ball up there could be contact but more likely there could be a bump. There were 6 tackles, the team that had possession of the ball had the opportunity to either use a kick to either gain ground, force an error from the opposition, regain the ball, or score a try. He identified that there was a possibility that accidental contact could occur when players were competing for a ball in the air.
Question 2(b) asked Mr Meaney whether the means by which the game commenced was an appropriate activity for the PE class? He answered, in AFL once the ball is bounced and is tapped out, the person receiving the ball from the tap quite often kicks it and this could have been at the commencement of the game. If the ball was put up, a ball up and tapped out, the receiving person in AFL very often kicks it forward.

Neuropsychologist consultations

The plaintiff claims $160 per consultation for neuropsychologist consultations totalling $1,600.
The defendant makes no allowance for neuropsychologist consultations as the report of Dr Jungfer (Ex A(1), Tab 21) refer to neuropsychological treatment for brain injury, because the joint report of the neuropsychologists does not establish that the plaintiff suffered a neuropsychological injury.

Resolution

Consultations have been recommended by the neuropsychologist, Professor Mattick for 4 to 6 sessions at $160, that totals $960. I allow this amount to help the plaintiff with the loss of his license.

Future care

The occupational therapists’ joint report

On 5 February 2021, Kelly Walcot and Susan Borthwick held a telephone conclave.
Both therapists agree that the plaintiff will require domestic assistance in the future in the form of a home handyman or yard assistant, but not specifically for domestic assistance. The neurologist do not think that the plaintiff requires domestic assistance for the past or future.
Ms Walcot says that if the neurological conclave suggests that the plaintiff continues to require 24 hour monitoring post seizure periods, then she would recommend 4 hours per week for home care on the assumption of a monthly post monitory seizure periods. The neurologists did not say that 24 hour monitoring was not required, then she would recommend 3 hours per month.
Ms Borthwick recommends that the plaintiff follow the advice provided for seizure prevention through behavioural change and possibly see a psychologist to assist with this, and with development of a seizure response plan. Ms Borthwick says that the Epi Assist will ensure that should the plaintiff not be able to follow through himself, then someone will be altered who can. She says that the plaintiff should also review his lifestyle choices generally to ensure he can remain independent and safe at home and at work in the future. She basis this information on the fact that the plaintiff’s epilepsy is not severe, is not occurring frequently nor is it greatly variable in his seizure response.
Her evidence is that 20% of people with epilepsy live alone and with the support of groups such as the Epilepsy Foundation and his treating doctor, the plaintiff should be able to live independently.
The therapists agree that:

the plaintiff would benefit from using information that is readily available from medical professionals or other sources of online information to better manage his seizures.

while the plaintiff can drive, he should be provided with 8 taxi vouchers per annum for those occasions when during the postictal phase he may need to consult a doctor, because driving during this phase is not recommended. They both agree that the plaintiff will require equipment such as an Epi Assist monitor for the remainder of his life.

the plaintiff requires installation of $250, plus occupational therapy consultation at $181 per hour including GST, to ensure adequate placement and that appropriate items are purchased shower and 1 seat at a cost of $150.

mowers of any sort are not required as mowing the lawn is not an activity that is required or recommended to be undertaken only in the postictal period.

Domestic care

Past domestic care

The plaintiff agrees that no allowance should be made for past domestic care as the plaintiff does not reach the relevant threshold.

Future domestic care

The plaintiff submitted that the plaintiff requirement for future care, although ongoing, correlates with his seizures, which makes quantification complicated. As a result, the plaintiff claims future care in the form of a buffer in the sum of $75,000.
The defendant has made no allowance for future care on the basis that the type of care likely to be provided to the plaintiff amounts to preparing for and checking on him during the postictal period is unlikely to be provided to him commercially and therefore would not pass the threshold for gratuitous care.
Both neurologists agree that up until February 2019, the plaintiff had received treatment with three anti-epileptic drugs - Epilim, Tegretol and Lamictal, and he had complained of side effects from medication and that there are a number of other anti-epileptic drugs that are potentially available for treatment. If the plaintiff is compliant with the medication that is tolerated, avoids sleep deprivation and excess alcohol then he would have at least a 70% chance of remaining seizure free. Professor Brew added that the plaintiff has experienced, in his eyes, intolerable side effects from three anti-epileptic drugs. The appropriate management then consists of trying to find anti-epileptic medication that he can tolerate. This should be accompanied by full education for the plaintiff in relation to the dangers of untreated seizures.
From the medical records, the plaintiff when he was a young man, did not take any medication for epilepsy. As previously stated, it is my view that now the plaintiff is of more mature years and if he is prepared to make lifestyle changes including getting enough hours of sleep and not drinking alcohol, he will avoid triggers that make him suffer epileptic seizures. He also gave evidence that he will be compliant with taking prescribed medications if the side effects are not great but tolerable.
The occupational therapists to not think that the plaintiff requires domestic assistance in the future. Both Professor Brew and Dr Sutton agree that the effect of the condition on the plaintiff’s ability to care for himself in the past has essentially revolved around the same issues that affect anyone with significant epilepsy. He has the ability to care for himself, there is no impact on personal care, that is toileting and showering and so forth. However, there may be some impact on his ability to look after himself given the frequency of the seizures and the preferred setting in which he has access to another person should he have a seizure, then that person can attend to him.
Dr Sutton added that it would not impact upon the plaintiff’s ability to care for himself in activities of daily living. It would impact on him in terms of caring for himself, in that as a result of his seizures, he is unable to drive, which may affect things such as shopping. However, he is clearly capable of caring for himself and he has had several jobs since leaving school.

Resolution

I accept the occupational therapists’ opinions where they agree that he needs 8 taxis vouchers per annum for those occasions when during the postictal phase the plaintiff may need to consult a doctor, because driving during this phase is not recommended. In the circumstances I do not make an allowance for future care. The neurologists agree that nearly all of his seizures take place at night when his partner is at home. He is able to get gatorade out of the fridge and heat up at meal. He usually sleeps after a seizure. He has the ability to care for himself, there is no impact on personal care, that is toileting and showering and so forth. I allow the 8 vouchers at $60 each. This totals $480 per annum.

Future equipment

I accept that the plaintiff requires installation of $250, plus occupational therapy consultation at $181 per hour including GST, to ensure adequate placement and that appropriate items are purchased shower and 1 seat at a cost of $150.
The plaintiff claims the costs of 2 grab rails (show and toilet) at a cost of $500 plus installation at $250, plus 1 shower seat at $150. This equates to $900. The defendant has agreed to this amount. I allow $900 for future equipment as I regard it as reasonable and necessary.

Occupational therapy

The plaintiff claims 5 hours of occupational therapy at $181 per hour. This equates to $905. The defendant makes no allowance for occupational therapy. The occupational therapists recommend one consolation.

Resolution

It is my view the recommendation of the occupational therapist may assist the plaintiff if and when he has a seizure. I allow 5 hours of occupational therapy for 5 x 181 per hour. This equates to $905.

Epi-Assist

The parties agree to the allowance for an Epi-Assist seizure monitor at a cost of $1,718 and a battery renewal at $320 per annum for life. This equates to $6,207.20.

Past economic loss

Section 12 of the Civil Liability Act provides for damages for past or future economic loss. It reads:

“12 Damages for past or future economic loss—maximum for loss of earnings etc
(1) This section applies to an award of damages:
(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or
(b) for future economic loss due to the deprivation or impairment of earning capacity, or
(c) for the loss of expectation of financial support.

…”

In September 2014 when the plaintiff was at school he worked after school and during the school holidays. The plaintiff left school in September 2014 and worked sporadically at various employments
The plaintiff resigned from Conrad Ford because he thought he was not paid enough (T.58.16-17) and from the Chinese Restaurant because he would have remained as a waiter (T.23.33-20).
The plaintiff has worked in various jobs including as an apprentice motor vehicle mechanic and spare parts interpreter at Eden Motors, a waiter at Chinese restaurant and at finally at Mitre 10. There is no indication as to how much the plaintiff earned in these occupations.
The only tax return that is available is for the is for the year 2018. The plaintiff earned $457 per week from John Michelin & Son Pty Ltd and Upkeep Home Maintenance.
As from 6 March 2019, since his employment at Mitre 10 was terminated (Ex 9) he has remained unemployed.
While the plaintiff initially relied upon relied upon a report of Furzer Crestani, forensic accountants dated 5 March 2019 to calculate his economic loss, he later recalibrated his claim for both past and future economic loss.

The plaintiff’s submissions

From 9 September 2014 to 5 March 2019, the plaintiff claims economic loss to reflect his absenteeism and inability to maintain ongoing employment at each employment due to his injury. The claim is made in the form of a buffer/cushion in the sum of $75,000.
In addition to the $75,000, a further claim is made from 6 March 2019 to date on the basis of one of the following scenarios to be accepted by this Court.
Scenario 1 as a Chef at a rate of $1,044 gross/$841.86 net per week (90% of Male Chef AWEC) for 128 weeks totalling $107,758.08.
Scenario 2 at average weekly earnings of $1,530.80 gross /$1,165.20 net per week for 128 weeks. The net figure is greater than the gross figure, so this calculation will be correct.
Scenario 3 as a Trades Centre worker at Mitre 10 at $684.27 net per week for 128 weeks totalling $87,577.60.

The defendant’s submissions

The defendant does not agree with a buffer for past economic loss on the basis that there is no significant loss of time between casual employment (T58.25-35).
The plaintiff has not worked since resigning from Mitre 10 in March 2019. The defendant submitted that he was capable of performing the role and has a number of transferable skills.
The expert evidence does not support significant incapacity. The knee injury appears to have had some influence on the plaintiff’s decision to leave school.
The school records suggest that the plaintiff was at best an average student with some disciplinary issues.
The defendant does not agree to the assumptions of likely earning contained in scenarios (1) and (2).
The defendant agrees to Scenario 3 as the plaintiff being employed as a Trades Centre worker at Mitre 10 at $684.27 net per week for 128 weeks totalling $87,577.60.

Resolution

It is most likely that if the plaintiff had not suffered epilepsy while working at Mitre 10, he would still have been in that employment today. He should be fully compensated for his loss of employment from when he was terminated from Mitre 10 to today. The sum of $87,577.60 reflects those lost wages and I allow that amount. I do not allow an additional amount as a buffer.

Fox v Wood (1981) 148 CLR 438

The parties are to agree upon this amount.

Past superannuation

The parties agree to past superannuation to be calculated at 11% of the total amount of the past economic loss. This equates to $9,633.54.

Future economic loss

Claims for future economic loss are governed by s 13 of the Civil Liability Act. It reads:

“13   Future economic loss-claimant’s prospects and adjustments
(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)   When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3)   If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

The plaintiff’s claim for future economic loss is made on the basis of one of the following past economic loss scenarios to retirement age of 70 (46 years/956.1). The defendant submitted that the period of future economic los as claimed by plaintiff should be up until he reaches the retirement age of 67 years. The plaintiff claims future economic loss as on the same 3 scenarios as past economic loss, plus scenario 4, which is an amount for a buffer.
While the plaintiff makes an alternate claim that he will work past the current retirement age to 70 years of age, without any evidence in support of this proposition, it is my view that the plaintiff will retire at the current retirement age of 67 years. The period is not until the age of 67 (43 years – 9.38.2 at 5%). The plaintiff’ future economic loss should be calculated to the retirement age of 67.

Scenario 1 as a Chef at a rate of $841.86 net plus CPI increases of 1.7% and -1% totalling $847.61 net per week x 956.1 x vicissitudes increased from 15% to 25% totalling $607,799.94.

The defendant makes no allowance for scenario 1.

Scenario 2 at average weekly earnings of $1,165.20 net plus CPI increases of 1.7% and -1% totalling $1,173.16 net per week x 956.1 reduced by 25% vicissitudes totalling $841,243.71.

The defendant makes no allowance for scenario 2.

Scenario 3 as an employee of Mitre 10 not quantified as per T88.19-21.

The defendant does not agree with scenario 3 but if an award is made then it should be discounted due to the evidence of the plaintiff’s willingness to comply with treatment and the probability of being able to find a medication to manage his seizures.

Scenario 4, a buffer/cushion to reflect the plaintiff’s reduced capacity for employment.

The defendant agrees that the best approach to scenario 4 is a buffer based on the plaintiff’s willingness to comply with treatment and the probability of being able to find medication to manage his seizures. The defendant suggests a buffer of $150,000 to $200,000.

Future economic loss

The neuropsychologists agree that the plaintiff does not suffer from any psychiatric or psychological disability under DSM V. After the head knock, the plaintiff has been unable to hold down regular employment.
As far as future employment is concerned, the neurologists agree that a history of seizures impacts on the availability of employment in a significant way in the future. Certain employments that would involve flying, driving heavy goods vehicles, working in dangerous situations would be precluded. The plaintiff has had several jobs since leaving school. He undertook an automotive apprenticeship and has done shop work. There are employments for which he is suitable. He has not obtained any history of any employment that he wants to pursue that is precluded due to epilepsy. Professor Brew added that he considered occupations that involve heavy machinery would also be difficult in someone who has seizures. I agree with Professor Brew’s opinion. It seems most likely that the plaintiff’s epilepsy will be more under control in the future. Both neurologists agreed in conclave that there is a 70% chance of the plaintiff being seizure free if he follows advice and an effective and tolerable medication regime is established. Professor Brew agreed that if the plaintiff was prepared to accept some side effects then there is a 70% chance of him being seizure free (T210.1-5).
It is Dr Sutton’s optimistic opinion that in the future the plaintiff may become seizure free and be able to obtain a drivers license.

The defendant’s submissions

The defendant submitted that the plaintiff’s claim for future economic loss is also contingent on his engagement and compliance with treatment. The expert evidence does not support significant incapacity. At worst there may be periods of incapacity depending on compliance with medical advice and the effectiveness of treatment.

Resolution

The plaintiff does not agree that a buffer is the correct approach. The defendant submitted that a buffer is the best approach. Taking into account the following factors that the plaintiff is in a stable relationship and is now willing to comply with treatment, the probability of him being able to find a successful prescribed medication to make him 70% seizure free, he may be able to obtain a drivers licence, post accident he has been able to hold down regular employment and he is a relatively young man, I assess the appropriate sum for a buffer as $200,000.
The parties are to calculate the amounts referred to in the schedule and check my calculations. I have included the schedule at the end of this judgment in the event that I am wrong on the issue of liability and causation.

Result

I enter judgment in favour of the defendant.

Costs

Costs are discretionary. Normally costs follow the event. The plaintiff has been unsuccessful. The plaintiff is to pay the defendant’s costs as agreed and assessed.

Judgment

There be judgment for the defendant.

The Court orders:

I enter judgment for the defendant
The plaintiff is to pay the defendant’s costs

SCHEDULE OF DAMAGES

Non economic loss

240,450.00

Past out of pocket expenses

5000.00

Past economic loss

87577.60

Fox v Wood

To be agreed by the parties

Past superannuation

9,633.54

Past domestic care (under the threshold)

Nil

Future domestic care – taxi fares 8 per annum at 60.00

48.00 per annum parties to calculate amount over lifetime

Future treatment

Medical consultations

Consultations with neurologist

Neuropsychologist consultation (6)

Occupational therapy

Epi-Assist

Consultations with GP

1392.83

5823.66

960.00

905.00

6,207.20

To be calculated by the parties

Future out of pocket expenses

20,000.00

Future economic loss

200,000.00

Total

579,949.83

**********

Decision last updated: 19 August 2021

Medium Neutral Citation:	Mattock v State of New South Wales (New South Wales Department of Education) (No 2) [2021] NSWSC 1045
Hearing dates:	3-6 May 2021
Date of orders:	19 August 2021
Decision date:	19 August 2021
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	The Court orders: (1) Judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs.
Catchwords:	TORT – Negligence – General principles – Personal injury – School PE class – Where plaintiff was involved in a ‘head knock’ with another student Defences – Civil Liability Act 2002 (NSW), ss 5I, 5k, 5L – Whether risk of harm was “obvious” – Whether the hybrid game was a “dangerous recreational activity” – Whether there was a significant risk of physical harm – Whether there was a materialisation of an obvious risk Causation – Whether breach caused damages claimed by plaintiff
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E 5G, 5H, 5I, 5L,5J, 5K
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Collins v Clarence Valley Council [2015] NSWCA 263) Cooke v Kent County Council (1949) 82 Lloyds LR 823 Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48 Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17 Fox v Wood (1981) 148 CLR 438 Holroyd City Council v Zaiter [2014] NSWCA 109 Jaberv Rockdale City Council [2008] NSWCA 98 Jeffrey v London County Council (1954) 52 LGR 521 Kady v Trustees of the Roman Catholic Church, unreported, NSWCCA, 19 February 1997 King v Western Sydney Local Health Network [2013] NSWCA 162 Kretschmar v State of Queensland (1989) Aust Torts Reports 80-272 Mattock v State of New South Wales (New South Wales Department of Education) (No1) [2021] NSWSC 477 Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301 Nobrega v Trustees of the Roman Catholic Church, unreported, NSWCCA, 23 March 1999 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Phillis v Daly (1988) 15 NSWLR 65 Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 Sydney v Kondrajian [2001] NSWCA 308 Thornton v Sweeney [2011] NSWCA 244 Trustees of the Roman Catholic Archdiocese of Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wallace v Kam (2013) 297 ALR 383; [2013] HCA 19 Woolworths Ltd v Strong [2010] NSWCA 282 Wright v Cheshire County Council (1952) 2 All ER 789 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247
Category:	Principal judgment
Parties:	Daniel Francis Mattock (Plaintiff) State of New South Wales (New South Wales Department of Education) (Defendant)
Representation:	Counsel: M Neil QC with R di Michiel (Plaintiff) M Fordham SC with S Love (Defendant) Solicitors: Stacks Goudkamp (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2018/190832
Publication restriction:	Nil

Non economic loss	240,450.00
Past out of pocket expenses	5000.00
Past economic loss	87577.60
Fox v Wood	To be agreed by the parties
Past superannuation	9,633.54
Past domestic care (under the threshold)	Nil
Future domestic care – taxi fares 8 per annum at 60.00	48.00 per annum parties to calculate amount over lifetime
Future treatment Medical consultations Consultations with neurologist Neuropsychologist consultation (6) Occupational therapy Epi-Assist Consultations with GP	1392.83 5823.66 960.00 905.00 6,207.20 To be calculated by the parties
Future out of pocket expenses	20,000.00
Future economic loss	200,000.00
Total	579,949.83