Mersal v Georges River Council

Case •

[2021] NSWDC 395

•

13 August 2021

District Court


New South Wales

Medium Neutral Citation: Mersal v Georges River Council [2021] NSWDC 395
Hearing dates: 19 July 2021
20 July 2021
21 July 2021
22 July 2021
28 July 2021
Date of orders: 13 August 2021
Decision date: 13 August 2021
Jurisdiction:Civil
Before: Coleman SC DCJ
Decision:

(1)   Verdict and Judgement for the first and second defendants on the Statement of Claim.

(2)   The Amended Cross Claim is dismissed.

(3)   The parties are to file and serve submissions no longer than five pages in length, with respect to the question of costs of the proceedings and of the Cross Claim, within 7 days of these orders.

The question of costs of the proceedings is to be determined on the papers absent any request by the parties for further hearing on that issue.

Catchwords:

Torts – Negligence – Duty of Council & School to School Students Using Council Fields – Whether the Plaintiff has Proven the Existence of a Pothole or Depression – Cross‑Claim – Assessment of Damages

Legislation Cited:

Competition and Consumer Law Act 2010 (Cth) Sch 2 ('Australian Consumer Law')

Civil Liability Act 2002 (NSW) ss 5B, 5B(2), 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5L, 5M, 5R, 5S, 13(1), 16, 16(4), 17

Cases Cited:

Bartels v Bankstown City Council [1999] NSWCA 129

Bujnowicz v Trustees Roman Catholic Church [2005] NSWCA 457

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Drivas v Jakopovic [2019] NSWCA 218

Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lanyon v Noosa District Football Club Inc [2002] QC A163

Mason v Demasi [2009] NSWCA 227

Michael Abazovic v Australian Capital Territory [2003] ACTSC 15

Rickards v Australian Telecommunications Commission [1983] 3 NSWLR 155

Swain v Waverley Municipal Council (2005) 220 CLR 517

White v Redding [2019] NSWCA 152

Texts Cited:

N/A

Category:Principal judgment
Parties: Ms Hope Amal Mersal (Plaintiff)
Georges River Council (First Defendant/First Cross‑Defendant)
The Trustees of the Uniting Church in Australia Property Trust (NSW) t/as “MLC School, Burwood” (Second Defendant / Cross‑Claimant)
Association of Heads of Independent Girls Schools NSW (Second Cross‑Defendant)
Representation:

Counsel:

Mr E Chrysostomou (Plaintiff)
Mr S Glascott (First Defendant / First Cross‑Defendant)
Mr D Talintyre (Second Defendant / Cross‑Claimant)
Mr R Perla (Second Cross‑Defendant)

Solicitors:

Parramatta City Legal (Plaintiff)
Mills Oakley Lawyers (First Defendant / First Cross‑Defendant)
Lander & Rogers (Second Defendant / Cross‑Claimant)
McCabe Curwood Lawyers (Second Cross‑Defendant)
File Number(s): 2019/00326976
Publication restriction: N/A

Judgment

BACKGROUND

  1. Hope Amal Mersal (the plaintiff) attended MLC School Burwood (MLC). Like many other school students, on the morning of Saturday, 29 October 2016, she was playing Saturday sport for her school, in this case touch football.

  2. The game was played at Peakhurst Park in Peakhurst, New South Wales. Sometime after half‑time of the game, the plaintiff was running and attempted to sidestep when she felt her legs buckle under her and she fell to the ground in severe pain. She alleges her foot got stuck in a hole or depression in the playing surface which caused her injury. It transpired that she had ruptured her anterior cruciate ligament (ACL), which later required surgical repair.

  3. Peakhurst Park was within the area and maintained by the council now known as the Georges River Council (“the Council”).

  4. The Saturday inter‑school touch football competition in which the plaintiff was playing was organised and run by the Association of Heads of Independent Girls Schools in New South Wales (AHIGS) through its Sports Arm, the Independent Girls School Sports Association (IGSSA).

  5. The plaintiff now sues the Council and MLC for damages (the first and second defendants in the proceedings), alleging that they were each negligent. MLC cross‑claims for contribution and indemnity against each of the Council and AHIGS (the first and second cross‑defendants).

  6. For the reasons that follow, the plaintiff has not satisfied me that her injury was caused by any negligence of the Council or MLC. That is because she has not satisfied me that, on the balance of probabilities, her injury was caused by a pothole on the playing field where the game took place. Accordingly, there will be Judgment for the defendants. The cross‑claim will be dismissed.

THRESHOLD ISSUES

  1. MLC submits that there are three threshold questions which could be decided which would impact on whether the plaintiff can succeed before an analysis of other issues needs to be undertaken. Those questions are:

  1. Whether the plaintiff has proved on the balance of probabilities that there was a hole or depression in the playing surface of the field that she stepped into at the time she sustained her injury;

  2. Whether the plaintiff has proved on the balance of probabilities that the nature, dimension and appearance of any such hole or depression were such that it was detectable on a reasonable inspection of the playing surface; and

  3. Whether the plaintiff has proved on the balance of probabilities that the nature, dimensions and appearance of any such hole or depression were such that a reasonable person would have taken precautions to prevent the hole or depression from causing injury to the plaintiff.

  1. I propose to analyse the evidence given by the witnesses called, and documentary evidence, for the purposes of making findings of fact and answering these questions. If the answers to any of those questions is adverse to the plaintiff, it will be unnecessary to deal with each of the myriad of other issues Those issues include the existence and scope of any duty of care owed by the defendants to the plaintiff, the statutory defences relied upon by the defendants under the Civil Liability Act 2002 (NSW) (“the CLA”) and the claim made by the plaintiff against MLC under the Australian Consumer Law (ACL).

EVIDENCE AND FACTUAL FINDINGS

  1. I make the findings below based on the evidence before me. References to “CB” are references to the Joint Court Book which was Exhibit 1 in the proceedings.

  2. The plaintiff enrolled at MLC in 2014. While she was a student of the school she was required to undertake physical education (“PE”) as part of her curriculum. She was also required to play weekend sport up to and including Year 8. There was an issue as to whether participation in Saturday sport, including touch football, was thereafter compulsory. The plaintiff referred to the enrolment form (CB 264‑267) where (at CB 266) it is stated that as a condition of enrolment that all students:

“…must participate and/or attend the following activities, as determined by the Principal…

(b)   co-curricular activities…”

  1. The plaintiff gave evidence (T64.01) that she believed Saturday sport was compulsory in Year 9; the year she was in when she was injured.

  2. MLC called Ms Lisa Filby, the director of sport for the junior and senior schools. She has been in this role in an acting position, and then permanently, from 2016. She said that in 2016, if a Year 9 girl did not want to play Saturday sport, she as the sports director would not ask her to do so (T212.50‑T213.10). In other words, it was not compulsory. She said Saturday sport was not part of the PE curriculum but was considered a co‑curricular activity (T224.21).

  3. I accept the evidence of Ms Filby. There is no evidence of any determination of the Headmaster that Saturday sport was compulsory for Year 9 in 2016. Whilst it was part of the school’s co‑curricular activities, and most likely encouraged, I find that it was not compulsory for Year 9 students in 2016.

  4. Although not compulsory, however, MLC provided for its students to play various sports on Saturdays wearing its uniform, using its name and in a competition it entered. The students were, in effect, representing MLC when they played weekend sport as part of the co‑curricular activities students could undertake. They could earn “pockets” for representing the school for a certain number of years (T226.18‑T226.29).

  5. MLC was a member of the AHIGS. The Principal of MLC applied to join the AHIGS and the school thereby agreed to be bound by its rules (CB 455).

  6. AHIGS ran various sporting competitions between its member schools under the auspices of the Independent Girls Schools Sporting Association (IGSSA). Saturday touch football was one of those competitions (CB 411; T214.01‑T214.42).

  7. One of the things MLC did as a member of AHIGS was to acknowledge that it had distributed the Risk Warning provided by AHIGS for the 2016 year (CB 507). MLC said it distributed a Risk Warning relevantly for sporting activities to parents and girls by school newsletter and the weekly newsletter.

  8. A copy of The Risk Warning for the 2016 year is at CB 411. The evidence is that this was the Risk Warning distributed, including by email to the parents of students of MLC (T219.06‑T219‑13; T227.15‑20; T233.07; T233.21‑T233.24).

  9. In 2016, the plaintiff decided that of the sports available, she would play touch football on Saturdays for the school. This was something she did because she enjoyed it and her friends also played (T49.15; T64.06‑T64.11). This was the third year or so that she had played touch football for the school on Saturday (T51.10).

  10. One of the grounds that the AHIGS competition was played at was Peakhurst Park in Peakhurst, New South Wales. There is evidence that MLC booked the park for the AHIGS touch football competition on 22 September 2016, for seven Saturdays commencing 15 October 2016 (CB 408‑410).

  11. The plaintiff played in a touch football game for MLC at the park on 15 October 2016. That was the first touch football game of that season.

  12. The plaintiff attended the park on Saturday, 29 October 2016 at about 9:30am for her 10:00am game. Her game was to be played on field 2 at the park. Her mother took her and stayed to watch the match (T49.37‑T49.38; CB 419‑421).

  13. Field 2 was one of three touch football fields (fields 2, 3 and 4) created inside a junior rugby league field at the park. These touch football fields ran approximately north to south (Exhibit 2; T73.06‑T73.12). Field 1 was to the west of these fields.

  14. AHIGS appointed, inducted and trained a Venue Convener for the purposes of supervising the conduct of the competition at the parks where the competition was played.

  15. The Venue Convener for Peakhurst Park on the day of the accident was Ms McPherson. Ms McPherson had no specific recollection of the day the plaintiff was injured but gave evidence as to her usual practices for when she was venue Convener and having refreshed her memory from certain documents created by her on the day. I accept that the evidence given by her of her usual practice is admissible and of considerable weight: see Drivas v Jakopovic [2019] NSWCA 218 at [54]. It was not put to her that she did not follow her usual practice on the day of the plaintiff’s accident. There is no reason to doubt that she did anything other than her usual procedure on this day and I accept her evidence as to the procedure she would have undertaken on that day.

  16. The Venue Conveners were provided with a handbook (CB 272‑407) which sets out their expected duties and contained copies of reports to be completed by them as required. Amongst the duties they were to undertake, a Venue Convenor was required to inspect the venue prior to matches being played following a checklist (CB 414) that had been provided and to sign a document certifying that they had undertaken the steps required (CB 413).

  17. On the day of the plaintiff’s accident, Ms McPherson arrived at the ground just before 7:00am. She concluded this because the checklist signed by her on that day indicates that she commenced the checklist at 7:00am. She undertook the required checking of the ground and the other items listed on the checklist.

  18. Ms McPherson’s evidence was that her checking the playing fields was done by her walking up one sideline of the touch of the touch football fields placing the cones for the try line, 5m line (from the try line), the halfway line, the 5m line and try line at the other end of the field, then walking diagonally back across the field to undertake the same exercise on the other side. While she was doing this she would scan from side to side looking for any foreign objects, rubbish or issues with the surface of the playing fields which may impact upon the safety of the games being undertaken on those fields. She undertook this for each of the fields, including field 2 (T249.30‑T249.40; T254.13‑T254.34; T277.21‑T277.44).

  19. The checklist completed by her for that day and sent back to IGSSA indicates that her inspection of the playing surface showed that it was free from potholes, trip and slip hazards, was not slippery and was of a suitable standard and size for secondary students (CB 414).

  20. She also set up a table where players who were participating in the touch football games to be played at the park were required to attend and sign on before they played (T244.27‑T244.49). A sign‑on sheet was provided to her by the Association or the hosting school. Usually the names of the players would be printed on the sheet and they would sign next to those names or, alternatively, sometimes they had to write their name and then sign the sheet (T231.21‑T231.24). The sign‑on sheet for the day of the plaintiff’s accident is at CB 416.

  21. Ms McPherson had a Risk Warning sign with her provided by the Association. That Risk Warning sign was on a laminated A3 pink page (T243.25‑T243.31; T244.41‑T244.43). She displayed this Risk Warning at the ground either on a wall of a utilities block behind where the sign on table was, or taped to the front of the sign on table. She confirmed that copy of the risk warning at CB 411 was the same as the one she displayed at Peakhurst Park the day of the plaintiff’s accident (T244.45‑T244.49; CB 413).

  22. She was required to complete a Venue Convener’s Declaration (CB 413) each week and returned to AHIGS. That declaration certified that the relevant venue Convener completed the following duties for that particular round of matches:

  1. A pre‑match safety audit of the venue and playing conditions has been conducted by both myself and the referees at the venue.

  2. I have displayed the IGSSA Risk Warning Sign in a position that is visible to all participants and spectators.

  3. Accident reports have been completed and returned to the AHIGS Office for all accidents that have occurred today.

  4. I have signed all referee cards at my venue and recorded a copy of the number of games each referee has officiated on my Convener’s sheet.

  5. The weekly return sheets have been completed and returned to the AHIGS Office ASAP.

  1. The completed declaration by Ms McPherson for 29 October 2016, the day the plaintiff was injured is at CB 413.

  2. The ground where the touch football game was played, Peakhurst Park, was owned by the Council. Generally, when Council permitted use of the park to entities such as local touch football associations, a fee was charged for a permit to play at the ground. A condition of those permits was that the touch football associations had to inspect the fields prior to play for defects in the surface of the fields, including potholes and fix the risk and reported to the Council. The terms of the condition in the permit are at CB442‑443 and were as follows:

  1. INSPECTIONS FOR HAZARDS

20.1    Sports Playing & Ancillary areas

a.   Seasonal permit holders shall be responsible for the visual inspection of the playing field and that surrounding area to a distance of 6m from the sidelines and other areas so designated for sports activities for defects, depressions, obstacles, objects, protrusions, exposed irrigation systems or any other hazard that would be a risk to users of the playing and training fields and spectators and are required to remove or manage the hazard or risk before the commencement of activities or alternatively prevent the use of the area, structure or thing.

…

c.   All identified risk must be reported to Council’s Sport & Recreation Officer on 9330 6400”

  1. There was no such condition applied to schools, or AHIGS as a schools Association, who were able to book the use of the touch football fields free of charge with different conditions effectively that they would collect rubbish after use, that no liquor would be taken onto or consumed at the park and that no vehicles be taken on to the park (CB 409-410).

  2. At the time of the accident involving the plaintiff, the touch football fields were also booked for use by the St George Touch Football Association and the Peakhurst Touch Association (CB 270). There was no evidence of any reports of defects in the playing surface of Peakhurst Park from those touch football associations or otherwise leading up to the date on which the plaintiff was injured.

  3. The Council had a system of maintenance of Peakhurst Park. A maintenance team consisting of a team leader and two other maintenance workers would attend the ground two times per week to remove rubbish and other foreign objects from the park and playing fields. This would involve them walking the park and fields zigzagging from east to west on Mondays and Thursdays. There was a stockpile of soil/dirt which could be used to feeling any holes or depressions on the grass surface of the park. The maintenance team also mowed the perimeters of the park once every 2‑3 weeks (T198.41‑T198.49).

  4. There was also a system of maintenance of the playing fields which involved the weekly mowing of the playing fields, usually on Thursdays by a tractor towing a large, 4m wide and 3 piece slasher with two wings folded down (T198.16‑T198.23).

  5. There was no evidence that any of the maintenance team or the mower driver had lodged reports of, or had cause to repair, any part of Peakhurst Park proximate to the plaintiff’s injury (or otherwise).

  6. On the morning of 29 October 2016, after the plaintiff arrived at the ground she went to the sign‑on desk, which was most likely in front of the canteen building at Peakhurst Park and signed on.

  7. The game commenced at 10:00am and was scheduled to have two halves of 20‑25 minutes each. The plaintiff said that, at about 5 minutes into the second half, her foot got caught in a whole whilst running towards the try line at the northern end. She said (T53.05):

“I was passed the ball… As I took a step with my right foot, my foot got caught in a hole, and my knee gave way and I collapsed”

  1. The plaintiff was attempting to sidestep the play in front of her off her right foot when she was injured. She said that she did not see any hole before stepping into it. She said that she was not looking for a hole or at the ground she was running. After she fell, she said she did not see a hole as she was in pain and not in a state to see it. I will refer to the plaintiff’s evidence about the circumstances of her accident in more detail below.

  2. Mr Andrew Bide, a parent of a teammate of the plaintiff playing in the same match, was at the northern end of the ground under the shade of trees watching the match. He said that he saw the plaintiff’s knees buckle under her and she fell to the ground (T139.28). Understandably, as a concerned parent and seeing she was in distress, he went to where she was to see if he could assist. He gave no evidence of seeing a hole in the filed in the area where the plaintiff had fallen.

  3. The coach of the plaintiff’s team was a Mr George Long. He was a medical doctor. The evidence was that he attended the plaintiff where she fell to assist her (T140.37‑T140.41). With the assistance of another player, he then moved her to the sideline area between two touch football fields where she was further attended to (T141.08‑T141.12). Dr Long then returned to inspect where the plaintiff had fallen before returning to provide further assistance (T234.30‑T234.40). There is no evidence that he saw a hole when he first assisted the plaintiff or when he went back to inspect the ground after she had been moved to the sideline. I will also return to this below.

  1. After the plaintiff was moved to the sideline, the game continued until its conclusion (plaintiff at T81.47‑T81.49 and T128.50‑T129.02; Mr Bide at T141.07‑T141.12).

  2. Ms McPherson attended on the plaintiff and spoke to her and those assisting her. She completed the Injury Report Form (which was part of the convenor’s handbook). A photo of the injury report form completed by her on that day is at CB 418 and a copy of it is at CB 417. In the section of the form headed “extra detail regarding how the injury occurred”, the following was written by Ms McPherson:

“running tried to step, foot went one way, leg went the other way”

  1. Mr Bide called an ambulance which attended some 30‑40 minutes later at 11:22am.

  2. The plaintiff was taken to St George Hospital with her mother for treatment. She was subsequently diagnosed with a ruptured right anterior cruciate ligament (ACL). I make further reference to the medical records below.

DETERMINATION OF THE THRESHOLD QUESTIONS

A Pothole Not a Depression

  1. The plaintiff’s pleaded case was that “within the surface of the field was a depression (the depression)”: Statement of Claim at [9]. During the course of the hearing, reference was made to a hole, a pothole or a depression. During closing submissions, Counsel for the plaintiff stated plainly that the plaintiff’s case was that there was a pothole, not a depression, on the field. He said (T356.37‑40):

“The pothole, it is described in the pleading as, “a depression”, but the evidence disclosed, your Honour, that it is more properly to be described as a pothole and not a depression.”

  1. He eschewed any description of it as a depression (T356.45).

  2. Counsel for the plaintiff also accepted on several occasions that if the plaintiff did not prove on the balance of probabilities that there was a pothole on the playing field into which the plaintiff fell, then she could not succeed in the proceedings (T325.09; T326.43; T340.18; T340.34‑T340.49).

Has the Plaintiff Proved that there was a Pothole?

  1. In order to decide this question, it is necessary to analyse the whole of the evidence with respect to the condition of the playing field, the circumstances of the plaintiff’s injury and her subsequent treatment on the day of the accident. That is because there is no direct evidence that anyone involved, including the plaintiff, saw any hole, or pothole, or depression in the area where the plaintiff fell either before or after her fall. As detailed below, the plaintiff relies on the sensation or feeling of her foot going into a pothole or there being a difference in height of the pitch where her foot went when she stepped. Not having seen the pothole, she gave estimates or guesses as to the dimensions of the hole.

  2. The defendants do not accept there was a pothole present and put to the plaintiff that her studs became stuck in the turf when she tried to sidestep (T105.33‑T105.38) or that her leg just buckled when she attempted the sidestep (T120.01‑T120.04; T128.38‑T128.40).

The Evidence as to the Pothole

  1. The only evidence of a pothole on the playing field was given by the plaintiff. Her evidence is that she did not see any pothole but rather had a feeling (T77.30; T105.50) or a sensation (T116.47) of her foot going into a hole and becoming stuck. She had not seen any other holes on the ground where she had been playing for the first half and part of the second half before she became injured (T78.4).

  2. The plaintiff said that she heard a popping sound in her knee when she fell (T53.10). She said that she was unresponsive for 10‑20 seconds and thought she may have fainted (T53.20). She said her right knee went numb and she was shaking and felt she was in shock (T53.30). She thought that the hole was of such a size that her whole foot went into the pothole (T54.30) and that the hole was maybe 5cm or a bit more in depth (T54.35). She thought it unlikely that her studs had become stuck in the grass as she had worn them before and that had never happened to her before (T105.35). She said she felt a significant difference in the height of the ground when she took the sidestep and that the hole was big enough for her size 8 touch football boot, which had studs on the bottom, to fit entirely in the hole (T74.30).

  3. She accepted that one moment she was running and the next she was falling. When it was suggested to her that she can’t be sure why she fell, she replied that she was “pretty sure it was because of a hole in the ground”. She was asked whether, in fact, she was describing a sensation rather than anything she actually saw with her own eyes and she agreed: (T116.47).

  4. When asked whether it was possible that her foot could have just hit the ground and she twisted her knee causing the injury she said: “perhaps, but I felt a significant difference in the height of the ground in my foot landed” (T105.50).

  5. The plaintiff agreed that her estimate of the size of the hole was a guess (T78.13).

  6. The plaintiff was unsure whether she told her coach (T117.23), her mother (T120.29‑T120.35) or the ambulance officers (T120.41‑T1520.46) of the existence of the hole after she fell and before she was taken to hospital. She agreed that she did not tell the Venue Convenor about the hole (T120.06‑T120.11). She said that she didn’t explain what happened to mother until a little bit later (T120.29‑T120.35).

  7. Mr Bide did not give any evidence of seeing a pothole when he went to assist the plaintiff. Indeed, he did not get give any evidence of observations of the condition of the ground such that he thought it was unsafe or caused him to make a complaint with respect to the playing surface (T147.17). He had walked over part of the playing surface before the game to get a coffee from the coffee cart which was at the southern end of the fields, he having parked at the northern side of the field so he could sit and watch the game under the shade of the trees there (T138.28; T138.38).

  8. The Venue Convener, Ms McPherson, gave evidence. As I have said above, she said that she could not recall the day of the accident but she gave evidence of her usual practice when she was a Venue Convener for the IGSSA touch matches which I accept she undertook the day of the accident. The evidence of her usual practice is supported by the completed checklist that I have referred to (CB414) and the Convener’s declaration which she completed that day (CB413).

  9. Ms McPherson said that if she had seen any holes or problems with the playing surface, she would have moved the game to another field as there were other fields available. She certified that the referees had also checked the field for defects and none were reported. There is no evidence the plaintiff told her that she had fallen in a hole. As I have said, no reference to a hole was included on her injury form. Her evidence was that if she had been told of a hole by the plaintiff, then she would have recorded that in the injury form, inspected the ground and not allowed the game to continue (as it did) to its conclusion (T251.01‑T251.18; T251.36‑T251.42).

  10. The evidence is that the plaintiff said that her coach, Dr Long, came to where she had fallen and provided assistance to her. There is no evidence he observed a pothole in the area where she had fallen. The plaintiff was moved to the sideline by him with the assistance of another player.

  11. I regard the evidence of one of the plaintiff’s team mates, Ms Roediger, as significant.

  12. She had been playing the whole game and observed that she thought the playing condition of the field was as follows (T229.40):

A.   It was nothing out of the ordinary. I didn't notice anything particularly bad. That field was often in quite good condition…”

  1. She said that she had not noticed any potholes, divots or depressions in the playing surface (T229.45).

  2. Most importantly, Ms Roediger said that after the plaintiff was injured she saw the plaintiff’s Coach, Dr Long, go from where he was assisting the plaintiff on the sideline back to where she had fallen to inspect the ground. She said that the coach went to inspect the ground not because of something the plaintiff had told him, rather because she said he was quite thorough in his actions and that was something he did by himself (T234.45‑T234.47).

  3. The plaintiff submitted that I should treat Ms Roediger’s evidence with caution. It was submitted that she had only been asked to recall the events of the day two days before she gave evidence (T237.05). I do not see why that is relevant to her credibility or reliability. It was not put to her she was making the evidence up.

  4. The plaintiff also submitted that Ms Roediger’s evidence assumed some importance “for reasons that were plainly unintended”. That was because, it was submitted, she was called by the second defendant and the evidence she gave that the coach went back to inspect where the plaintiff fell was not led from her in her evidence in chief. Counsel for MLC explained that was because he had no instructions that she would give this evidence.

  5. The evidence she gave was in answer to a question by the plaintiff’s counsel. He submitted in oral submissions that it was a non‑responsive answer and should not be given much weight. I disagree on both propositions. In my opinion, it was responsive and is of considerable weight.

  6. I formed the impression that she was a witness giving honest evidence as to her recollections of the day of the plaintiff’s injury. Her evidence as to what the coach did in going back to inspect where one of his players had fallen, was credible. She said the coach was thorough and his going back to check is consistent with him being concerned as to why the plaintiff fell and whether there was any danger to other players. I accept her evidence.

  7. After the plaintiff was moved to the sideline and was being treated whilst waiting for the ambulance, the game continued to its completion (T128.50‑T129.02; T232.12‑14; T236.45‑50).

  8. The plaintiff was then taken to St George Hospital. The medical records from the St George Hospital, which include records from the NSW Ambulance Service record in the usual way, the history that the treating professionals entered in the records as to an injured person’s symptoms, diagnosis and circumstances of injury.

  9. The ambulance service record (CB 604) states next to the heading “Case description”:

“[patient] state (sic.) she was playing touch football when she heard a pop in her R knee followed by 8/10 pain. O/E alert, orientated,… Pain decreased with application of ice pack. Assessed by medical on scene-Q ruptured ACL. Nil other complaints.…”

  1. The pre‑arrival summary prepared by the hospital (CB 597) records:

"15 YO playing touch footy. Tripped over, knee buckled? torn R anterior cruciate.”

  1. The nursing admission notes (CB 600) record as follows:

“Running whilst playing touch football.

Heard and felt pop in R knee. Lowered self to ground.

Has not WB since. States knee feels unstable.”

  1. The treating registrar’s notes (CB 598) record as follows:

“Written in retrospect

Playing soccer

foot caught in pothole and think the need twisted

felt a pop and had right knee pain

Dr at the game felt there was ACL laxity”

  1. The reference in the registrar’s notes is the only reference to a hole which was made either in the medical notes (or at all) contemporaneous to the plaintiff’s injury.

  2. I have already referred to the injury report completed by the Venue Convenor. It did not contain any reference to the plaintiff stepping in a hole, or to the existence of the hole. An injury report was also prepared by MLC in relation to the plaintiff’s injury (CB 426‑428). The report was prepared by Ms Lisa Filby, who also gave evidence as I have mentioned. She said that the details on the report (CB427) next to the “detailed description of injury/incident” where a direct copy/paste of an email she had received from Dr Long (T216.46). That report is as follows:

“Just to let you know one of my players took a tumble on Saturday morning at Peakhurst Park playing touch football for MLC06. (Hope Mersal year 9).

You may or may not know that I am a doctor, working in emergency for 20 years and I did two seasons in Perisher, so I have seen a few knee injuries.

She was in obvious discomfort, so examining the knee immediately after injury can be difficult. Her right knee appeared to be more lax than her uninjured left knee. Medial and lateral ligaments seemed okay. She said she felt a pop. The fall was awkward. She wasn’t able to weight bear and was in obvious discomfort when trying to mobilise, so we called an ambulance which took her to St George Hospital. She had an x‑ray which cleared her of a fracture (more specifically an avulsion fracture). I anticipate she will need an MRI to exclude ligament damage. Her mum will see how her pain goes in the next 48 hours and get reviewed by her GP with a view to MRI.

An incident report was filled in and left with field supervisor, Kate, who contacted Wayne Mitchell and the director of Danebank sport was there as well (sorry, didn’t catch a name).

I’m obviously hoping she doesn’t have an ACL rupture.

Hope is bitterly disappointed that she probably will be missing Monday morning training!!… but is hopeful she will be fit to play against her old school, Tara, this weekend!!

Kind regards

George”

  1. On the last page of that incident report (CB 428), it is noted that the plaintiff’s parents had requested information regarding the school’s insurance policy for students’ accident/injury. Those details and a claim form were provided to the parents and the form was later completed and received by the school. That claim form, apparently signed by the mother of the plaintiff, is at CB 434‑437. It appears to have been completed on 3 May 2017. By that time, the plaintiff had been consulting Dr Aziz, General Practitioner, and Dr Dao, Specialist Orthopaedic Surgeon. Next to the section of the form where a full description of the injury was to be provided stating “when, where and how it happened”, the following is written:

Injury:               RIGHT ACL TEAR

How Sustained Full Description:    PLAYING TOUCH FOOTBALL

Where:             PEAKHURST OVAL

  1. There is no reference in the claim form completed by the plaintiff’s mother of the plaintiff stepping in a hole. The attending physician statement signed by Dr Dao on 10 May 2017 (CB436‑437) which accompanies the insurance claim does state in response to the question “what were the circumstances surrounding the injury?”:

“Touch football. Sidestepped into ditch.”

Consideration

  1. As can be seen from the above evidential references, there is actually no direct reference of anyone, including the plaintiff, seeing a pothole on the playing field before, at the time of, or after the plaintiff fell and was injured. The plaintiff describes a sensation of what she believes to have been her stepping into a hole with there being a significant difference in the height of the ground. This was when she heard a pop and her leg buckled underneath her. She accepted that she did not look for, or see, a pothole in the ground at the time of or after her accident, nor did anyone else.

  2. Having considered all of the evidence I have formed the view that the plaintiff has failed to prove on the balance of probabilities that there was a pothole on the playing field into which she stepped at the time of her accident.

  3. I have reached this conclusion for the following reasons:

  1. There is no evidence that any of the other persons who were at the ground that day and inspected it, or were involved with the touch football game, saw a pothole where the plaintiff was injured.

  2. Ms McPherson undertook the inspection of the playing surface I have described above and did not see any pothole, or any other defect in the playing field. If she had done so there would have been no difficulty in moving games from that field to another available field.

  3. Ms McPherson certified that the referees had inspected the playing surface themselves prior to games commencing and did not report any pothole.

  4. Additionally, two other games had been played on that field over the course of the same morning and none of the referees, nor any other player or official involved in those games, had reported any hole on that field.

  5. Ms Roediger gave evidence that she did not see any hole and thought the field was in reasonable condition (T229.40‑T229.47).

  6. There is no evidence that any of the people who came to the plaintiff’s assistance when she fell saw a pothole where the plaintiff fell. This included Dr Long, the plaintiff’s coach, Mr Bide or any of the plaintiff’s teammates (including Ms Roediger).

  7. Dr Long, after moving the plaintiff to the sideline, returned to where she had fallen to inspect the ground. He did not report any pothole in the ground. The game continued to its conclusion. I find it glaringly improbable that a coach, particularly one who was medically qualified and who was the coach of a player who had just been seriously injured, would not have reported a pothole (if it was visible) or allowed the game to continue on that field if he had seen one.

  8. Dr Long’s report of the injury to MLC referred to in para 78 above makes no mention of a pothole. If he had seen one it seems to me glaringly improbable that he would not have mentioned it in his report.

  9. The plaintiff does not recall whether she told her mother at the ground after she was injured that she stepped into a pothole but she did tell her afterwards, probably at the hospital. There is no evidence that the mother made a complaint to the school about the condition of the playing surface on that day or at any time afterwards nor returned to the ground to inspect it for the pothole or cause someone else to conduct such an inspection. No reference was made by the parents to a hole in the insurance claim form signed by the plaintiff’s mother. I have not ignored the reference to the “ditch” made by Dr Dao on this claim form submitted to MLC. However, this was signed in May 2017 when, I infer, the plaintiff (or whoever told Dr Dao this information) had formed the view that this is what had happened. This reference does not otherwise impact on my assessment of the issue based primarily on more contemporaneous evidence.

  10. The only mention of a hole on that day was to the registrar at the hospital. There is no evidence that a reference to a hole was made to the ambulance officers, the triage nurse or the treating nurse. In my opinion, caution should be exercised with respect to the registrar’s note; it was “written retrospectively” and I gather at a time later to when the doctor was taking the history of the injury. Further, there is no evidence as to who told the registrar this information. It may have been the plaintiff, the plaintiff’s mother, or some other unspecified person. Additionally, there was an error in those notes in that the doctor had the plaintiff playing soccer, rather than touch football. The notes also say “doctor at the game felt there was ACL laxity” which was a term the plaintiff accepted she probably did not use (T130.20). It is unlikely, therefore, that the doctor was recording just what the plaintiff said. I accept the matters raised by the second defendant in [10] of its written submissions as to the veracity and reliability of the registrar’s entry. These matters cause me to treat these records with some caution. None of the medical professionals, including the registrar, were called to give evidence: Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8].

  11. At the time of the plaintiff’s injury, the touch football fields at Peakhurst Park were also being used by the Peakhurst Touch Association on Monday nights and the St George Touch Association on Wednesday and Thursday nights (T167.05). As I have set out above, as a condition of their permits to use the playing fields at Peakhurst Park, those associations were obliged to inspect the playing field before each match and report any defects, including holes. There is no evidence of any such reports.

  1. There is no evidence of any reports to Council by its employees, contractors or others who use the fields of any pothole is in the playing surface at or around the time of the plaintiffs injury.

  2. There is no evidence that if there was a pothole of the nature and size estimated by the plaintiff, how long it was likely to have been there or what might have caused it.

  3. The nature of the plaintiff’s injury, namely a ruptured ACL, does not itself speak of there being a pothole on the field into which she fell whilst she was sidestepping. The joint orthopaedic report (Exhibit 3) concludes that the plaintiff’s injury was sustained whilst she was playing touch football and the injury occurred when she twisted her knee. The medical experts stated that the injury could have been sustained on level ground.

Submissions on Jones v Dunkel Inferences and witness’ reliability

  1. The plaintiff submitted that the Court should exercise caution in drawing any inference from the evidence I have referred to about Dr Long inspecting the field where the plaintiff fell after he had moved her to the sideline. The plaintiff submitted that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference should be drawn against MLC “for the failure to call the coach”. The plaintiff submits that Dr Long could have given evidence of material facts, he was available to MLC who did not call him and that as he was the coach of the MLC in team he was in the second defendant’s camp.

  2. MLC submitted that no such inference should be drawn. It submitted that Dr Long might equally be considered to be in the plaintiff’s camp as he was her coach at the time and equally available to her to be called if he would support her version of events. Further, on the plaintiffs own version, she did not tell the coach how she fell (or at least cannot remember doing so) and this is equally consistent with Ms Roediger’s evidence that Dr Long went back and inspected the area where the plaintiff fell of his own volition as a responsible coach would do. Additionally, there is no evidence that a deliberate decision not to call Dr Long was made.

  3. I accept the defendant’s submissions. I do not think any adverse inference can be drawn against MLC for a failure to call Dr Long. The evidence as to his relationship with MLC is that he was the coach of the team. The plaintiff thought that he was hired by the school. As I have set out above, he did report to the school with a message as to the injury to the plaintiff. In this sense, it may be thought that he is in MLC’s camp, however, I do not see what inference could be drawn as to his failure to give evidence which would be adverse to MLC. That is because I infer that if he had seen a pothole on the field when he first attended to the plaintiff after she had fallen or on his subsequent inspection of that area, he would have indicated this in his report to the school and he would not have allowed the game to continue after the plaintiff was removed from the field.

  4. The rule in Jones v Dunkel does not permit an inference that certain evidence not called by a party would have been adverse that party. Rather, any available inference is that such evidence would not have assisted the party. The failure to call a witness cannot be used to draw an inference to fill gaps in the evidence, as distinct from enabling and available inference to be drawn more comfortably: see the discussion in Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 at [49]. I therefore cannot infer that Dr Long would have given evidence adverse to the second defendant (that there was a pothole). As I have said, the factors of him having seen where the plaintiff fell and going back to inspect it and no action being taken, together with the absence of a reference to a hole in his report to MLC, leads me to infer he did not see a pothole.

  5. The second defendant submits that if any Jones v Dunkel inference be drawn, it should be one against the plaintiff for not calling the plaintiff’s mother to give evidence. I am not persuaded, however, that any such inference should be drawn. That is because the evidence is that the plaintiff does not recall whether she told her mother about the pothole at the ground, although it is probable that the mother would have been aware of the plaintiff saying she fell in the pothole at the hospital. There is no evidence that mother went to look at where the plaintiff fell either at the time of the accident or otherwise. In those circumstances, she could not be expected to give and direct evidence as to the existence of the hole or otherwise.

  6. The defendants submit that I should treat the plaintiff’s evidence with caution and find that she not a reliable witness. The first defendant did not submit that the plaintiff fabricated her evidence, but that she could have exaggerated or reconstructed events to promote her case. I have taken into account the matters in [46] of the first defendant’s submissions going to the issues with respect to the plaintiff’s evidence. I do not think that any of those matters would cause me to reject the plaintiff’s evidence as not being credible, but I do not accept it as reliable in respect to the existence of the pothole. I formed the impression she was a witness doing her best to recall events which occurred five years ago and undoubtedly have had a significant impact upon her. I formed the view that the plaintiff honestly felt, at least sometime after her accident, that she did sidestep into a pothole. In my opinion, however, the preponderance of the evidence does not support her belief such that I can be satisfied on the balance of probabilities that this is what actually occurred.

  7. The plaintiff’s claim thus fails at this threshold issue.

If There was a Hole, was it Discoverable?

  1. Despite the finding I have made in respect to the first threshold issue and although not necessary, I will consider the possibility that a pothole did exist in the dimensions suggested by the plaintiff, namely, big enough to fit a size 8 female shoe and about 5‑10cm deep. The question is then whether the plaintiff has established on the balance of probabilities that any such hole would have been detectable upon a reasonable inspection of the playing surface of the field.

  2. I answer this question without considering in detail the question of the nature and content of any duty of care owed by the defendants to the plaintiff (there was a dispute about this), but assuming that a duty of care was owed by each of the first and second defendants. I accept that the nature and content of any duty of care owed to the plaintiff may inform the reasonableness of any precautions which ought to have been taken in response to the identified risk of harm. However, for present purposes, I am simply addressing whether, on the findings I have made on the evidence, the plaintiff could establish that the pothole would have been discovered if reasonable care had been taken (in the sense of there having been reasonable maintenance and inspection of the filed). In doing so, it is necessary to have regard to the pleaded risk of harm and the precautions the plaintiff pleads should have been taken, noting that such precautions only need to be ones which are reasonable.

  3. The risk of harm pleaded by the plaintiff is the risk of a “child playing school sports on the field of stumbling into the depression and being injured”: Statement of Claim at [21]. I will also accept for present purposes that the risk of harm was foreseeable and not insignificant (see s 5B CLA).

  4. If I had to decide whether the defendants had breached any duty of care owed to the plaintiff, then the question would become whether a reasonable person in the position of each of the defendants’ position would have taken the precautions pleaded. The precautions pleaded against both of the defendants are said to have been:

  1. Inspecting the field;

  2. Monitoring that persons engaged to inspect the field did so regularly and in a competent manner;

  3. Filling in and levelling the depression;

  4. Providing persons using the field with a safe playing surface;

  5. Making the depression plainly visible to persons playing on the field;

  6. Barring access to the depression;

  7. Mowing the grass around the depression;

  8. Removing visual obstructions from around the depression; and

  9. Warning …of the depression.

  1. Determinative of whether a reasonable person would have taken these precautions are the considerations under s 5B(2) of the CLA.

  2. The plaintiff gave evidence that the hole may have been covered by grass and leaves and the like (T77.46). Again this is speculation as she did not look for or see the hole. Games had been played on the field during the week before the plaintiff played and there had been two games played on the filed on the day of the plaintiff’s injury prior to the game in which she played. The hole was not detected by any one of those people who, it can be readily inferred, had already traversed the field before the plaintiff played the match in which she was injured. Further, it was not detected by the coach when he assisted the plaintiff or when he went back for his subsequent inspection. As I have said, I infer that the subsequent inspection by the coach was for the purposes of him checking the playing surface where the plaintiff fell. If the hole could not be seen by the coach undertaking such an inspection, how could it have been detected?

  3. There is no evidence as to how long any pothole may have been in existence on the playing field or whether it could or should have been detected by any system of inspection: Rickards v Australian Telecommunications Commission [1983] 3 NSWLR 155 at 158 per Priestley JA; Michael Abazovic v Australian Capital Territory [2003] ACTSC 15 per Crispin J at [23] and [24]. The fact that such a pothole, if it existed, could be missed given that no player, referee, venue convener or the coach failed to notice it does not indicate that even if it existed and for such time that some inspection system might have detected it, that it would have been negligent to have missed it on inspection: Lanyon v Noosa District Football Club Inc [2002] QC A163; Bartels v Bankstown City Council [1999] NSWCA 129 at [49].

  4. The plaintiff bears the onus to prove that there was a reasonably practicable precaution that would reduce or eliminate the risk: Swain v Waverley Municipal Council (2005) 220 CLR 517 at [100]

  5. The plaintiff submitted that a metre by metre inspection by a person or persons walking the fields, not just a visual inspection, is what was required. The plaintiff referred to Bujnowicz v Trustees Roman Catholic Church [2005] NSWCA 457 in support of this submission. However, such a method of inspection was not expressly pleaded as a reasonable precaution and, in any event, I do not think it is one. As MLC said at [39] of its submissions :

“This decision may be distinguished on the facts in the present case in that the hole in Bujnowicz was the subject of evidence from people who actually saw it and could confirm its presence and appearance; and in this matter MLC had ensured that AHIGS had in place a system of inspection for the field that the plaintiff played upon, which included requirements on both the Venue Convenor and the referee (together with foot patrols two to three times a week by the Council). To apply the reasoning in Bujnowicz as to inspection requirements, which should be limited to its own facts in any event, the plaintiff would also need to demonstrate in this case that even a metre by metre inspection would have revealed the presence of the alleged hole. On the evidence, she cannot do that.”

  1. In my opinion, there is no basis to conclude that a system of inspection of a metre by metre walk over of every part of the playing fields was reasonable, proportionate or appropriate in the circumstances. There is no evidence as to how many people would be required to undertake such an inspection of the touch football field at Peakhurst Park, how long such an inspection would take and whether if undertaken it would have discovered the pothole.

  2. I accept the second defendant’s submission that the Bujnowicz case is distinguishable. The accident in that case took place on the school grounds on a field which had recently been the subject of significant flooding and was known to contain hazards such as rocks and stones. In this case, the accident took place on a field owned by the Council in a competition run by AHIGS with the inspection systems I have described by those parties already in place. Even assuming a non‑delegable duty of care was owed by MLC to the plaintiff, I would not conclude on the evidence that a metre by metre inspection walking over every part of the touch football fields reasonably should have been undertaken or would have discovered the pothole.

  3. As for the Council, the evidence I have referred to above details the system of inspection and maintenance it had. Council was responsible for many other parks and fields. It is a public authority. It required others using the fields at Peakhurst Park (not AHIGS) to inspect the fields and report any defects to it. It had a system of weekly mowing of the fields where the operator would check for and report any noticeable defects, It also had the maintenance crew who walked the park, including the fields, collecting garbage and checking the fields generally. It seems to me that, on the evidence, those steps were reasonable in the circumstances. The plaintiff has not established that that system would have discovered a pothole of the types alleged by the plaintiff, assuming one existed. In my opinion, it would have been impractical (and unreasonable) for Council to inspect, metre by metre, every playing surface with indefinite frequency.

Whether the Nature, Dimensions and Appearance of the Pothole were such that a Reasonable Person would have Taken Precautions to Prevent the Hole from Causing Injury to the Plaintiff

  1. A consideration of this question imports similar factors to the previous one. I accept the second defendant’s submission that even allowing for the fact that some variation in the playing surface was present, there are no sound factual bases on the evidence upon which I could find that any such variation in the surface of the fields on the day of the plaintiff’s accident in the particular location where she fell, or generally, was of such a nature and extent that a reasonable person in the position of the defendants (or AHIGS) would have taken precautions to prevent it from causing injury to the plaintiff. That is because the only “evidence” about the size and dimensions of the pothole are the guesses made by the plaintiff which she accepts may not be reliable (T78.15).

  2. Even accepting the plaintiff’s estimate as to the dimensions of the pothole as reliable, for the reasons I have given above in response to the previous question, there is no evidence to support a finding that a reasonable person in the position of the defendants (or AHIGS) would have taken precautions to prevent it from causing injury. That is because it cannot be found on the balance of probabilities that the hole would have been discovered by any reasonable system of inspection by either of the Council, MLC (on the assumption it had such an obligation) or AHIGS.

OTHER MATTERS

  1. As I have said, a determination of the first threshold question adverse to the plaintiff, as has occurred, is fatal to the plaintiff’s claim. So much was accepted by Counsel for the plaintiff in submissions. Counsel for the plaintiff submitted that the answer to questions two and three would depend upon the Court making findings with respect to the nature and content of the duty and would go to a consideration of the breach of that duty. So much can be accepted, however, the findings I have made even assuming the existence of the duties of care being owed by the council and MLC as alleged by the plaintiff, do not assist the plaintiff.

  2. Accordingly, it is unnecessary to determine other matters which would have been relevant to the success of the plaintiff’s claim insofar as they have not been considered, or fully considered, above. Those matters include (as contained in the pleadings):

  1. The nature and scope of any duty of care owed to the plaintiff by:

  1. The Council; and

  2. MLC (particularly whether any duty of care owed was non-delegable).

  1. The matters in relation to ss 5B and 5C of the CLA;

  2. Questions arising with respect to causation and ss 5D and 5E of the CLA;

  3. Questions with respect to the assumption of any risk by the plaintiff and whether any risk was obvious or inherent within the meaning of ss 5F‑5I of the CLA;

  4. The question of whether, in the circumstances, touch football was a dangerous recreational activity within the meaning of s 5L of the CLA;

  5. Whether the provisions of s 5M were engaged so as to negate any duty of care by the defendants or the cross‑defendant by reason of the school distributing the Risk Warning and it being present at the ground at the sign on area on the day of the accident. My findings as to Saturday sport not being compulsory in 2016 for the plaintiff and the sending of the Risk Warning to the parents, and its display at the ground on the day of the accident, would prima facie indicate a strong argument in favour of the negating of any duty of care owed by the defendants by reason of s 5M;

  6. Whether the plaintiff was contributorily negligent attracting the operation of ss 5R and 5S of the CLA. I note below that in my putative assessment of the plaintiff’s loss I do not accept she would have been contributorily negligent;

  7. Whether the provisions of Australian Consumer Law apply such that the plaintiff is entitled to relief under that law (as it is accepted by the plaintiff that absent a finding of a pothole, such a claim would fail); and

  8. The question of contribution or indemnity between MLC as cross‑claimant, and the Council and AHIGS as cross‑defendants.

  1. Whilst the Court has received and been assisted by submissions from all of the parties on most of those matters, because of my conclusions as to the first threshold question, and due to the extensive nature of the other matters which would need to be determined as listed above, I do not intend to traverse those matters. The resolution of some of those matters may be relatively straight forward, but others involve legal questions of some detail and complexity. To properly deal with those matters in a reasoned way would unnecessarily prolong the finalisation of these reasons and would not, in my opinion, be an efficient use of the Court’s time.

  2. I would add that there was expert evidence on liability relied upon by the plaintiff and to which the second defendant replied. After objections were taken to the reports and ruled upon, I found the material left, including in the joint report of Mr Fogg and Mr Blacker to be of such limited value that I have not referred to it in detail. The experts were engineers. The plaintiff’s expert had not even been to Peakhurst Park. The second defendant’s expert had visited the park some 4½ years after the accident so that his observations of the ground at that time were irrelevant. In determining what a reasonable system of inspection was, I do not consider their opinions, expressed in the manner they were, assisted me.

Quantum of damages

  1. Authority does dictate, however, that I provide an assessment on the plaintiff’s loss on the assumption that my conclusion with respect to liability is incorrect. Whilst in this case, there would be other questions going to the issue of the liability of the defendants as I have listed above over and above the threshold questions, I will provide my views on the quantification of the plaintiff’s loss if she had been successful in establishing that her injuries had been caused by a breach of a duty of care by the defendants.

The Medical Evidence

  1. The nature of the plaintiff’s injury is not in dispute. She suffered an acute anterior cruciate ligament rupture and articular cartilage fissure in the lateral tibial plateau of the right knee (see Exhibit 3: Joint Report of Expert Orthopaedic Conclave dated 20 July 2021 (“the Joint Medical Report”) Q1).

  1. The Joint Medical Report recorded the plaintiff’s past and present sequelae of the injury as being, before reconstruction the plaintiff had instability, pain and locking, also pain associated with ACL reconstruction surgery, immobility when recovering from surgery, difficulties for walking up to 6 months. Current symptoms were recorded as recurrent swelling, intermittent knee pain, hamstring pain, pain on jumping when on feet all day and went jogging. It was recorded that the plaintiff was slower in her activities and had difficulties bending or squatting.

  2. Both experts agreed that the plaintiff suffered a permanent impairment of the right leg at above the knee of 15% as a result of the accident. They agreed that she may have some limitations in physical activities, such as running, cross fit, cardio training, in the short to medium term and that despite the reconstruction of the knee it is not completely normal and never will be.

  3. Both experts agreed that the plaintiff has an increased risk of developing post‑dramatic osteoarthritis from approximately age 35 onwards. These chances are mild to moderate and it is more probable than not that this will occur. If the plaintiff does develop osteoarthritis, then treatment included conservative treatment such as anti‑inflammatories, physiotherapy PRP injections, and activity modification. Surgical options include osteotomy, partial knee replacement, and revisionary replacement.

  4. The experts agreed that the treatment that had been undertaken by the plaintiff of the knee reconstruction and post‑operative physiotherapy were reasonably necessary for the management of her injury.

  5. As to the possible cost of the future treatment, the experts said that this was a difficult question to answer. She may require none or all of the abovementioned treatments if she develops osteoarthritis. They noted that physiotherapy was approximately $100 per session and an osteotomy was $20,000, with the replacement cost varying from $25,000‑$50,000.

  6. The experts agreed that the injuries and disability sustained as a result of the accident did not affect the plaintiff’s capacity for work. That was because she was a school student and not working at the time of the injury. They said that beyond the six month mark, there had been no impact on her capacity to work up until now. As to future capacity, both experts agree that the plaintiff should be able to cope with predominantly sedentary type work activities but may have difficulty in more physical activities requiring kneeling, squatting or climbing, if they form part of her work life in the future, and in particular if she developed significant post‑traumatic osteoarthritis. If she does not develop osteoarthritis, then the plaintiff will have no difficulties in future work capacity.

  7. The experts agreed, therefore, that unless the plaintiff develops osteoarthritis, in which case she may be confined to semi‑sedentary work and may need to avoid squatting or kneeling if required in her work, she does have capacity to work in the future.

  8. In respect to domestic assistance, the experts agreed that whilst recovering from the ACL reconstruction for the first three months, she would not have been able to contribute to the house work that she would usually do at her age. There would be no routine need for future domestic assistance, unless she developed post‑traumatic osteoarthritis, in the event of which she will require some assistance.

Plaintiff’s Submissions

  1. The plaintiff’s evidence was that she suffered significant and excruciating pain at the time of the injury. She was 14 years of age at the time. She used the crutches and found it difficult to make her way around school. Her knee continuously gave way. It was not steady and would spasm. She continued to suffer pain and took Panadol and Nurofen pre‑surgery and post‑surgery analgesics, followed by Panadol and Nurofen for a short time.

  2. The plaintiff submitted she still continued to experience pain which is worse during winter. She has permanent scarring on her leg, has difficulty standing for long periods and has not played any competitive sport since 2016.

  3. She has undertaken some part‑time work at McDonalds and Scentre Group. Her evidence was that she had some difficulty and pain after standing on her feet for a period of time.

  4. The plaintiff submits that she is at 30% of the most extreme case under s 16 of the CLA.

  5. As to future economic loss, the plaintiff submits that her ability to perform vocational duties in the future may be significantly curtailed. She submits to have a reduced capacity for employment on the open market and may have to retire early if the increased risks of osteoarthritis occur. She submits a buffer of $75,000 plus superannuation at 9% would be allowed.

  6. The past out‑of‑pocket expenses are agreed mathematically at $7,999.89.

  7. As for future treatment, the plaintiff says an allowance should remain of $25,000.

  8. The claim for domestic assistance is not pressed.

The Defendants’ Submissions

  1. The first defendant submits that the non‑economic loss allowance for the plaintiff should be no more than 20% of the most extreme case having regard to a range of tariff cases it has provided as an annexure to its written submissions.

  2. It submitted that the plaintiff has not proven entitlement to gratuitous domestic assistance either past or in the future.

  3. Noting that the risk of osteoarthritis is rated by the experts as “mild to moderate” from age 35 and that the plaintiff is studying business and law at university, the first defendant submits the conclusion to be drawn is that she is more likely to be engaged in sedentary employment. The risk of financial loss due to that injury is therefore negligible.

  4. As to future treatment, the first defendant refers to the joint experts’ conclusion that this may be none or all of the above and that there are no indications at the moment as to which, if any, treatment will be required.

  5. The first defendant submits that having regard to the plaintiff’s most likely future circumstances and her more probably being involved in sedentary work, she is unlikely to suffer financial detriment from any loss of capacity. It submits any future loss of earnings is speculative.

  6. The second defendant submits that the Court would find that the plaintiff exaggerated the nature, frequency and severity of her ongoing symptoms even though it is unlikely that she now has a perfectly normal knee or that it has returned to its pre‑injury condition. Even if that were not so, the plaintiff is clearly still capable of a wide range of physical activity and, resubmitted, is unlikely to sustain any economic loss require much in the way a future treatment or domestic assistance as a result of the injury.

  7. As to future treatment, because the experts cannot opine as to what will be required, “perhaps none or all of the suggested treatments and the fact that surgery is only “possible”, the second defendant submits that this puts an allowance for such treatment in the realm of speculation.

  8. The second defendant submits that the appropriate range of non‑economic loss is at 15‑20% of the most extreme case. It submitted that, although young when she sustained her injury and having required surgery, objectively the plaintiff has recovered well and her apparent self‑limitation of activity should not govern the damages she is awarded. It submits she is fit for all except the most vigorous pursuits and it is unlikely that she will suffer anything except mild symptoms in the future.

  9. It otherwise relies on its Schedule of Damages.

Consideration

  1. In my opinion, the plaintiff has suffered significantly as a result of the injury. There is no doubt she had suffered pain at the time of the accident and following it. She was restricted in what she could do. She can no longer play sport of her choosing and is embarrassed by a resultant weight gain.

  2. I assess the appropriate range of non‑economic loss should be assessed at 20% of the most extreme case in accordance with s 17 the CLA. In accordance with the Civil Liability (Non-Economic Loss) Amendment Order 2020 (NSW), this amounts to $24,045, although pursuant to s 16(4) of the CLA, is rounded down to $24,000.

  3. I do not accept that the plaintiff was guilty of any contributory negligence. She was running in the course of the game, concentrating on the play and (if the pothole existed) she could not be expected to have been looking to the ground in such circumstances.

  4. In respect to future economic loss by reason of any reduction in the plaintiff’s earning capacity, on the assumption that the plaintiff will complete her business and legal studies and most likely end up in sedentary work, I am not satisfied that most likely there will be an impact on the earning capacity but for the injury: s 13(1) CLA; White v Redding [2019] NSWCA 152.

  5. In respect to future treatment costs, whilst I cannot be certain that any or all of the treatments recommended by the joint experts will be required, having regard to the fact that the risks of the plaintiff developing osteoarthritis are mild to moderate and “more probable than not”, I propose to allow an amount for future medical treatments in the sum of $25,000.

  6. Past treatment expenses (including the Medicare charge) are agreed mathematically at $7,999.89.

  7. I note that the claim for domestic assistance is not pressed.

  8. I would therefore award the plaintiff the sum of $56,999.89.

ORDERS

  1. I made orders as follows:

  1. Verdict and Judgement for the first and second defendants on the Statement of Claim.

  2. The Amended Cross‑Claim is dismissed.

  3. The parties are to file and serve submissions no longer than five pages in length, with respect to the question of costs of the proceedings and of the Cross‑Claim, within 14 days of these orders.

  4. The question of costs of the proceedings is to be determined on the papers absent any request by the parties for further hearing on that issue.

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Decision last updated: 13 August 2021

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Statutory Material Cited

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Bartels v Bankstown City Council [1999] NSWCA 129
Bujnowicz v Trustees Roman Catholic Church [2005] NSWCA 457
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320