Sanchez-Sidiropoulos v Canavan

[2015] NSWSC 1139

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sanchez-Sidiropoulos v Canavan [2015] NSWSC 1139

Hearing dates:

1 December 2014, 2 December 2014, 3 December 2014, 4 December 2014, 23 March 2015, 24 March 2015 and 26 March 2015

Date of orders:

14 August 2015

Decision date:

14 August 2015

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

Judgment for the defendant.

The usual order is that costs follow the event. In this case that would be an order in favour of the defendant on the basis of costs as agreed or assessed.

If the parties seek some different order, they should approach within 14 days. Failing such an approach the Court’s order will be:

1.Ms Sanchez-Sidiropoulos’ claim is dismissed with an order for costs in favour of the defendant, as agreed or assessed.

2.All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords:

TORTS – negligence – personal injury – school – game played in PE class – construction of the Civil Liability Act 2002 (NSW) – whether proceedings were brought within time – Jones v Dunkel inferences – scope and nature of duty of care owed by school to student – no breach – risks posed by game played on asphalt surface – reasonable care – reliability of evidence – supervision and instructions – causation – expert evidence – claim dismissed – costs

Legislation Cited:

Civil Liability Act 2002 (NSW)
Limitation Act 1969 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Caruana v Darouti [2014] NSWCA 85
CG Maloney Pty Ltd v Hutton-Pots [2006] NSWCA 136
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Drinkwater v Howarth [2006] NSWCA 222
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
New South Wales v Lepore [2003] HCA 4
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336
Purkess v Crittenden (1965) 114 CLR 164
RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rosenberg v Percival [2001] HCA 18
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431
SAS Trustee Corporation v Woollard [2014] NSWCA 75
State of New South Wales v Gillett [2012] NSWCA 83
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13
The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308
Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn [2013] NSWCA 10
Wyong Shire Council v Shirt (1980) 146 CLR 40

Category:

Principal judgment

Parties:

Jade Sanchez-Sidiropoulos (Plaintiff)
Brother Kelvin Canavan (Defendant)

Representation:

Counsel:
Ms V Heath (Plaintiff)
Mr C Bridge SC with Mr CP O’Neill (Defendant)

Solicitors:
JP Capsanis & Co Lawyers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2009/297447

Publication restriction:

No

Judgment

1. In June 2005, Ms Jade Sanchez-Sidiropoulos, then a 10 year old attending the defendant’s school, hurt her hand and hip while playing a game of tag known as “table soccer”, as a warm-up activity during a PE class, when she collided with another child and fell to the asphalt surface of the basketball court where the game was being played. She claims that the collision was the result of the School’s negligence; that the injury to her hand led her to develop complex regional pain syndrome (“CRPS”), from which she continues to suffer; and that as a result, she is entitled to damages under the applicable provisions of the Civil Liability Act 2002 (NSW) (“the Act”).

2. The School denies any negligence. That Ms Sanchez-Sidiropoulos suffered the injury on which her claim rests; that any condition from which she now suffers was caused by the fall; or that it has any liability for the damages she claims, are all in issue. Whether the proceedings were brought within time, is also in issue.

3. The proceedings were commenced in April 2009 by Ms Sanchez-Sidiropoulos’ mother, as her tutor. Ms Sanchez-Sidiropoulos was an adult by the time the hearing commenced in 2014. She then gave evidence and also called evidence from another former student and experts. She did not call evidence from her parents. The School called evidence from its then principal, teachers, a former student, as well as from experts.

4. I have come to the conclusion that Ms Sanchez-Sidiropoulos has not established that her fall in 2005 was the result of the School’s negligence. It has long been recognised that it is neither practicable nor desirable to attempt to establish a system of education that seeks to exclude every risk of injury and that schools must encourage and teach high spirited young children to engage in games and sporting activities, for their own health and wellbeing.

5. As I will explain, the evidence established that the School achieved the required balance between meeting its obligation to encourage its students’ participation in physical activity and taking reasonable care for their safety in the PE class in which Ms Sanchez-Sidiropoulos was participating when she fell.

6. I have also concluded that Ms Sanchez-Sidiropoulos has not established that the condition from which she now suffers was caused by her fall. In the result, her claims must be dismissed.

The issues

7. When the hearing commenced, the parties identified the issues lying between them to be:

“1.   Did the defendant breach the duty of care owed to the plaintiff?

2.   Specifically,

a.   was the risk of falling and/or collision foreseeable

b.   was there a not insignificant risk of harm of injury from a fall onto asphalt

c.   was there a not insignificant risk of harm of injury from a fall onto asphalt caused by unavoidable collision with another player

d.   would a reasonable person have taken precautions by:

i.    choosing a different, more suitable, less risky game to be played on the surface?

ii.   warning about risks of collision, how to avoid collision and imposed rules to avoid or minimise risk of collision between players?

iii.    supervised in a manner to avoid or minimise risk of collision between players?

e.   did the defendant fail to take the precautions a reasonable person would have taken?

3.   Causation of injury

a.   the experts seem to be agreed that the 2005 fall caused at least soft tissue injury;

b.   causation of plaintiff’s complex regional pain syndrome type 1 - defendant disputes diagnosis - does plaintiff's participation in athletics and other sporting activities and ongoing daily use of affected hand and some reported inconsistencies in presentation mean that she does not qualify for diagnosis of CRPS-1?

c.    causation of psychiatric conditions: adjustment disorder with features of anxiety and depression; conversion disorder (diagnosis not agreed by experts)

4.   Quantum of damage - evaluation of general and economic loss damages

5. What was the date of "discoverability" of the plaintiff's cause of action for the purposes of the Limitation Act?

6.   Further issues arising from defendant's amended defence, if leave is granted.”

The construction of the Civil Liability Act 2002 (NSW)

8. In final oral submissions it was put for Ms Sanchez-Sidiropoulos that she alleged a positive act of negligence, namely, by the School selecting the game of table soccer over others, when the combination of the risks of that game, in all of the circumstances in which it was being played, made it unsuitable and unnecessarily unsafe, compared to the alternatives.

9. The way in which the case was finally put was submitted to raise the question of whether an act of positive negligence fell within s 5B of the Act (see Caruana v Darouti [2014] NSWCA 85; (2014) Aust Torts Reports 82-163 at [105] - [115], Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn [2013] NSWCA 10; (2013) Aust Torts Reports 82-124; Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) LGERA 208 at [52] - [54] and Drinkwater v Howarth [2006] NSWCA 222 at [24] - [25]).

10. I do not consider that positive acts of negligence are excluded from this statutory scheme. That turns on a question of statutory construction. As the Chief Justice discussed in SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2004) 86 NSWLR 367 at [58]:

“... As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute.”

11. The Act contains no express statement of its purpose, as Bryson JA observed in CG Maloney Pty Ltd v Hutton-Pots [2006] NSWCA 136 at 177:

“It would be a difficult exercise to deal comprehensively with the provisions of Pt.1A Negligence, Div.2-8 of the Civil Liability Act 2002; these are among the provisions inserted in that Act by the Civil Liability Amendment (Personal Responsibility) Act 2002. There is no general statement of purposes or of objectives in either Act. Some of the provisions may have been intended to restate or declare parts of the law of negligence while others change parts of that law. I have not observed any overall purpose or scheme of the amendments which can be brought to bear on the construction of any particular provision. The application of each particular provision should be considered in its statutory context and in relation to the facts of each particular case in which a litigant claims to rely on it. Broad views and insights based on them should be deferred until there has been a significant accumulation of judicial experience on the operation of these provisions.”

12. The Act itself draws no distinction between positive and other acts of negligence. It is expressly provided in s 5A that Part 1A of the Act applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise, unless excluded by s 3B. It is s 3B “Civil liability excluded from Act”, which specifies the provisions of the Act which do not apply to, or in respect of, particular classes of civil liability. That section does not provide that an act of positive negligence of the kind here alleged, does not fall within s 5B.

13. Were the Act to be construed as not applying to positive acts of negligence, it could give rise to the plainly unintended result that whether particular negligence could be pursued under the Act, would depend on how the act of negligence is pleaded: that is, as a positive act of negligence, rather than a negligent failure to take some required precaution. That is a consideration which tells against such a construction, as McDougall J discussed in Caruana at [108] and Hodgson JA in Drinkwater at [24].

14. The practical consequences of giving a particular meaning to an Act must be considered when legislation is construed (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320-1). This is a consequence which tells against the construction raised for Ms Sanchez-Sidiropoulos.

15. In my view, the words actually used in ss 3B, 5A and 5B all do not support such a restrictive construction of this statutory scheme, whose purpose is, I consider, to establish a regime governing the pursuit of any claim for damages for any harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

The pleaded case

16. In its final submissions, the School developed an argument that Ms Sanchez-Sidiropoulos’ pleadings were inadequate in various ways, with the result that her case must fail. Detailed submissions were then advanced as to the requirements of the Act, which it was submitted, had not been not pleaded, as they ought to have been.

17. This was in dispute. It was submitted for Ms Sanchez-Sidiropoulos that her claim had never been that the School ought to have replaced the asphalt surface on which she fell, but rather that a different warm-up activity should have been selected, from amongst other available and entirely safe activities. It was also argued that there was no social utility in playing an unsafe game over a whole range of other, either entirely safe, or safer activities.

18. It suffices to observe that the amended statement of claim could have been better pleaded, by reference to various requirements of the Act. Had these matters been given greater attention at the pleading stage, the case might have been more focussed than it came to be.

19. The difficulty, finally, it seemed to me, with the way in which the case was pressed, having in mind the requirements of s 5B of the Act, was twofold. The first, that the other activities suggested in submissions as being ones which the School should have used as a warm-up activity, on the evidence did not appear to be capable of satisfying what the warm-up activity was required to achieve, namely, to warm the students up for playing another vigorous game, on the same surface in that PE class.

20. The second was that if that other game was touch football, to which table soccer was a precursor, that game too, carried with it very similar risks of collision, fall and injury. That was so, notwithstanding that the rules of touch football were more structured than those of table soccer. On the evidence, even basketball, the game for which the court on which the table soccer was being played, was intended, carried with it such risks.

21. It was not, however, pleading deficiencies on which the conclusions which I reached, rested. Rather, it was that the evidence failed to establish the case which Ms Sanchez-Sidiropoulos pressed, the onus lying on her to establish that case.

Were the proceedings brought within time?

22. Section 50C of the Limitation Act1969 (NSW) requires that claims such as this be brought within 3 years from the date on which the cause of action “is discoverable by the plaintiff”. Ms Sanchez-Sidiropoulos was injured on 16 June 2005 and the proceedings were commenced by her mother, as tutor, on 8 April 2009.

23. Discoverability is dealt with in s 50D, which relevantly provides:

“50D   Date cause of action is discoverable

(1)     For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a)    the fact that the injury or death concerned has occurred,

(b)     the fact that the injury or death was caused by the fault of the defendant,

(c)     in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)     A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3)     In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4)     ….”

24. The operation of these provisions was considered in Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454, Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 and State of New South Wales v Gillett [2012] NSWCA 83. In Gillett the Court of Appeal accepted the correctness of the interpretation of s 50D in Baker-Morrison.

25. The School did not concede that Ms Sanchez-Sidiropoulos had established when the matters dealt with in s 50D(1)(c) had become known, that is, that her injury “was sufficiently serious to justify the bringing of an action on the cause of action”. On its case, that was certainly before April 2006.

26. It was contended for Ms Sanchez-Sidiropoulos that the section gave rise to a defence, thus it fell on the School, not her, to establish that her claim had been brought out of time. It seems to me that this approach to onus is correct. It was certainly the approach taken in Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13 (see at [35] - [48]).

27. Given that Ms Sanchez-Sidiropoulos was a child at the time of her injury and when the proceedings were brought, the matters raised by the section depend on what was known, at least by her mother, who brought the proceedings as tutor.

28. The physical injury to Ms Sanchez-Sidiropoulos’ hand the day she fell appeared to be slight, on initial examination at hospital. It was conceded that it was known to her parents that day, that she had fallen and suffered some kind of injury to her hand. The CRPS with which she was later diagnosed and from which she still claims to be suffering, is relatively rare, but a possible consequence of such an injury.

29. Ms Sanchez-Sidiropoulos’ case was that on the documentary evidence, it could not be concluded that what was known by April 2006 as to her ongoing symptoms, established that her injury had been sufficiently serious that a claim would satisfy the threshold requirements of s 16 of the Act, particularly given that she was then still a child. Proceedings on her behalf could then only have been brought by a tutor, in circumstances where a solicitor certified under s 345 of the Legal Profession Act2004 (NSW), that there were reasonable prospects of success on a cause of action. There was no evidence that such advice had been sought, or that even if it had, that a solicitor could then have given the necessary certificate.

30. In Baker-Morrison, Basten JA observed at [45]:

“In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person “knows” (or ought to “know”) the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings. Further, despite the inability to bring proceedings without a solicitor in a position to certify in accordance with the requirements of the Legal Profession Act, it is the knowledge of the plaintiff’s mother which is the focus of the statutory test.”

31. Here, there are numerous medical records in evidence, as well as two accident reports. The first on the day of fall on 16 June 2005, of which there are two versions, the first as signed by Ms Luland (nee Sullivan) and the second also signed by the Acting Principal, Mr Watkins, who also recorded that “Mother may make a claim after she has spoken with a specialist”. The second report dated 13 December 2006, noted that Ms Sanchez-Sidiropoulos had first been treated on 22 June 2005 and that “Mrs Sidiropoulos would like injury to be recorded as surgery may be required when Jade gets older. Doctors are not certain at this stage”.

31. I do not consider that these certificates establish that Ms Sanchez-Sidiropoulos’ mother had the necessary knowledge by December 2005. There was then a concern on her part that there was an injury which might require surgery in future, but no certainty. On the medical records, Ms Sanchez-Sidiropoulos received a great deal of further attention before April 2006. It was whether by then, that her parents knew that the injury was sufficiently serious to justify the bringing of an action, that has to be determined.

Jones v Dunkel inferences

33. There is no question that Ms Sanchez-Sidiropoulos’ parents could have given relevant evidence about these matters.

34. There is no suggestion of any fear that Ms Sanchez-Sidiropoulos’ parents would not give truthful evidence, if called. In her evidence, Ms Sanchez-Sidiropoulos explained that, as a result of her injuries, she did not finish her schooling. She has never worked and still lives at home with her parents. When asked why she had not called evidence from anyone in her family, she said that she and her mother had had a family dispute, when she threw out all of her medications and sporting trophies, she said, because she was “just sick of them”. She also said that she had told her mother “Don’t come, I want to stand on my own two feet”.

35. Ms Sanchez-Sidiropoulos also said that she had stopped taking her medication three months previously, because she did not want to be a drug addict. That had been extremely hard, because she had been taking medication since 2005, but she wanted to get off medication, even though she still had pain at a high level, because the medication did not really bring the pain any lower, to what normal is. She explained that she was doing her breathing and trying to stay away from medication, despite the ongoing symptoms and pain which she described, with, she said, some days being better than others, but with symptoms still coming on spontaneously.

36. In cross-examination, Ms Sanchez-Sidiropoulos said that she still lived at home with her parents; still went shopping and out with her mother, but at home they did their own thing. She still had a good relationship with her father.

37. The School’s case that in those circumstances, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inferences were available to be drawn against Ms Sanchez-Sidiropoulos, must be accepted.

38. The principle is concerned with a party’s unexplained failure to call a witness, where it would be natural for that party to call that witness, or where the party might reasonably be expected to call that witness. Its operation was recently considered again in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] - [96]. The three relevant considerations are: first, that the missing witness would be expected to be called by one party, rather than the other; second, that this evidence would elucidate a particular matter and thirdly, that the absence is unexplained.

39. If those conditions are satisfied, then as discussed at [79] of RHG Mortgage, the inference may be drawn that the witness’ evidence would not have helped the party’s case. That inference may then be used in two ways. Firstly, in deciding whether to accept any particular evidence given, either for or against that party, which relates to a matter about which the person not called as a witness could have spoken. Secondly, in deciding whether or not to draw inferences of fact, which are open in relation to matters about which that person could have spoken.

40. As was accepted in final submissions, what must here be considered is whether or not the explanation given by Ms Sanchez-Sidiropoulos provided a sufficient explanation for her failure to call evidence from members of her family, in the circumstances of this case.

41. The disagreement with her mother over her decision to stop taking medication she had been prescribed is, in my view, not a satisfactory explanation for not calling evidence from any member of her family. Even the disagreement with her mother was, on her own account, not sufficiently serious to damage their ongoing relationship. She continues to shop and go out with her mother, she lives at home with her parents and has a good relationship with her father.

42. There were unquestionably a number of matters about which her family members could have given relevant evidence, including matters of fact on which the limitation question turns. In the result, it follows that a Jones v Dunkel inference is available to be drawn against Ms Sanchez-Sidiropoulos, where the balance of the evidentiary record is equivocal.

Conclusion

43. Despite this, I am not able to conclude that the limitation defence has been established. Clinical records reveal that CRPS was identified by Dr Chaitow when Ms Sanchez-Sidiropoulos was taken to Westmead in August 2005 as a possibility. They also record Ms Sanchez-Sidiropoulos herself saying on 20 September at the pain clinic “I have a syndrome”. The note also recorded “ie CRPS – change in colour of hands etc”. Dr Collins, who treated her then, however, found no evidence of CRPS.

44. Ms Sanchez-Sidiropoulos had various further treatment. Other notes record in December 2005 that her mother was offended by Dr Kilhan’s suggestion that she needed psychological input for social problems. This was not pursued. It was on 16 April 2006, when Ms Sanchez-Sidiropoulos was taken to hospital again, that triage notes refer to a CRPS diagnosis by Dr Chaitow and her mother still being unhappy with the suggestion of the need for psychological treatment. She was referred again to Dr Chaitow with pain worsening after doing shot put and javelin. On 2 May, her GP, Dr Niumeitolu referred her to Dr Wheen, after a diagnosis at the Children’s Hospital of Reflex Sympathetic Dystrophy. Her physiotherapy treatment continued, with a report on 7 June, of having had no pain of late.

45. As the School accepted, there is a real difficulty in dealing with a syndrome of this type. Despite the concern from the outset that Ms Sanchez-Sidiropoulos’ injury was the School’s fault, that it might be serious and an early view apparently, by her mother, that she might require surgery and have CRPS, despite the view to the contrary reached by treating doctors, that her parents, particularly her mother, who brought the proceedings as tutor, had the necessary knowledge by April 2006, that her injury was sufficiently serious to justify the bringing of an action, has not, in my view, been established on all of the evidence.

46. In the result, it must be concluded that the proceedings were brought within time.

The School did not breach its duty of care: summary

47. On Ms Sanchez-Sidiropoulos’ case, the risks of injury which table soccer posed were not ameliorated by the School taking reasonable precautions. The findings of fact for which she contended were summarised in detail at MFI 14. It is not necessary to repeat them all here. Many of them were not contentious, but some, I am satisfied were not established on the evidence.

48. Both parties called expert evidence. The experts were divided over the nature of the risks which the table soccer posed, particularly when played on an asphalt surface and whether they could, or had been ameliorated, by the precautions taken by the School and Ms Luland.

49. I have reached the conclusion that Ms Sanchez-Sidiropoulos has not established that the School breached its duty to her.

50. In summary, I am satisfied that Dr Tronc’s view that any games which involved a risk of collision, even those routinely played on asphalt courts such as that where Ms Sanchez-Sidiropoulos fell, including basketball and netball, should not be permitted to be played on a hard surface like asphalt, bitumen or concrete, given the safety risks which they posed, may not be accepted.

51. The School was obliged to deliver the State’s curriculum to its students with the resources that it had. Professor Marino’s view that table soccer was an appropriate way for part of the PE curriculum to be delivered, must be preferred, on the evidence as to how the game of table soccer was, in fact, conducted in Ms Luland’s class on the day that Ms Sanchez-Sidiropoulos fell.

52. I am also satisfied that it cannot be concluded that table soccer was such a dangerous game that it ought not to have been played at the School at all, or even that it ought not to have been played on an asphalt surface, as was also Dr Tronc’s view. Nor has it been established that either the instructions or the supervision provided by Ms Luland were inadequate. In my view, that cannot be established by one unobserved collision, notwithstanding the unfortunate result of the fall for Ms Sanchez-Sidiropoulos.

53. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, the conclusion reached at [102] in relation to the conflict there between the expert’s opinions and the lay evidence, was that the expert’s opinions ought not to be accepted uncritically; that it was difficult to be convinced by them; that the lay history of incident-free use of the stairs where the accident there in question had occurred, suggested that they were not slippery, contrary to the expert’s views; and that the inference from that history, was preferable to the expert’s conclusions. This, it seems to me, is a similar case.

54. The evidence of the actual history of incident free playing of table soccer on the School’s asphalt basketball court, apart from Ms Sanchez-Sidiropoulos’ fall, supports the conclusion that Dr Tronc’s views cannot be accepted over those of Professor Marino, supported as his opinions were by the actual experience of the playing of table soccer at the School. That history was consistent with the view that the playing of table soccer on the day on which Ms Sanchez-Sidiropoulos fell, involved no breach of the duty which the School owed her or its other students.

55. The evidence simply did not establish that reasonable care required that some other warm-up activity should have been undertaken, instead of table soccer, or that Ms Luland’s instructions or supervision of the game were inadequate.

56. In the result, I am satisfied that it must be concluded that the School did strike the balance discussed in The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 and that the injury which Ms Sanchez-Sidiropoulos suffered, regrettable as it was, was not the result of the breach of the duty which the School owed her.

57. The reasons for these conclusions follow.

The cases finally pressed

58. The case finally pressed for Ms Sanchez-Sidiropoulos was that it was the combination of the selection and operation of table soccer, as played on the day she was injured, which established the breach of the School’s duty. The particular tag game selected to be played on the asphalt surface and the failure to select a safer, more suitable alternative game of tag, which would have avoided or minimised the risks posed by table soccer, when played on that surface, given the risk of collision, the age of the players, their distraction and the natural progress of the game, as well as the inadequate supervision and direction of the players that day, were all relied on to establish the School’s breach of its duty.

59. It was also argued that a properly managed game would have included instructions on how to avoid and be mindful of collision, reinforced by specific warnings given during the game, by use of a stop whistle. That Ms Luland did not see the collision established, it was argued, that all of the play was not being kept in view as it should have been and that she was distracted.

60. On Ms Sanchez-Sidiropoulos’ case, it was relevant that there had been past mishaps when students had been injured when they fell over on the asphalt surface where she fell; that the evidence did not establish that this particular version of tag, table soccer, had been played at the School before, or if it had been, she had forgotten; and that further, on that day, Ms Luland’s supervision had not been adequate.

61. The School contended that it had not breached its duty, but had taken reasonable precautions for the risks posed by table soccer; and further, that the evidence raised for consideration matters discussed in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 at [128]:

“Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness. Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible.” [footnotes omitted]

62. On the School’s case, table soccer was a game commonly played on asphalt surfaces in its playgrounds and those of other schools across the State before and after Ms Sanchez-Sidiropoulos’ fall. Even though children do fall over in playgrounds, this game had presented no particular hazards and had not given rise to any particular incidence of accidents. Her fall had not been the result of any negligence on its part.

63. What was in issue between the parties thus raised questions as to whether it was appropriate to play table soccer on an asphalt surface; whether appropriate instructions were given the day Ms Sanchez-Sidiropoulos fell; and whether the game was properly supervised.

64. I am satisfied that the evidence to which I will now turn, established that the case advanced for Ms Sanchez-Sidiropoulos overstated the nature of the risks posed by table soccer, even when played on asphalt; that the way in which the risks which it posed were, in fact, managed by the instructions given and the supervision provided that day by Ms Luland, which was adequate; and that, in the result, the School did not breach the duty which it owed Ms Sanchez-Sidiropoulos.

The expert evidence

65. What lies between the parties must be resolved in light of the expert evidence which the parties led.

66. Ms Sanchez-Sidiropoulos called evidence from Dr Tronc, who considered that table soccer was such a dangerous game, that it ought not to have been played at all by children of the age that she was, when she was injured, particularly on asphalt. I am satisfied that opinion cannot be accepted. Even Dr Tronc moderated that opinion somewhat, during the concurrent evidence he gave with Professor Marino.

67. Their areas of expertise differed. Dr Tronc was a consultant with, amongst other qualifications, a PHD in educational administration. He was formerly an Associate Professor of Education at Griffith University and at one time a School Principal. Professor Marino was the Chair of Exercise Physiology and Foundation Head, School of Human Movement Studies at Charles Sturt University. In the concurrent evidence, Dr Tronc explained the areas about which he was not qualified to offer opinions, including children’s physical capacity at particular ages.

68. The experts each provided a report, as well as a joint report. In the joint report, they answered particular questions earlier posed to them, which were premised alternatively on Ms Sanchez-Sidiropoulos’ evidence, or that led by the School, being accepted. Those questions went to supervision, instructions and whether table soccer was a dangerous activity for children of Ms Sanchez-Sidiropoulos’ age.

69. Dr Tronc there said that table soccer was not dangerous per se, but it was rendered dangerous by inadequate supervision and instructions; large numbers of children in a small space; being played on a bitumen surface; and involving high speed, childish running, weaving, dodging and zigzagging. He also referred to a summary in his further supplementary report of “a variety of perceptions of the dangerousness of the game and its increasing lack of favour in many school systems worldwide.” That those perceptions apply to the game of table soccer, which even now is played in schools in this State, was not established.

70. In his earlier report, Dr Tronc had said that he had assumed that table soccer was a variant of an older English game variously called Red Rover, Tiggy, British Bulldog and Cocky Laura, which had an international reputation for being dangerous, violent and so had been increasingly banned as carrying a high risk of injury. That table soccer was such a game, was simply not established on the evidence.

71. Professor Marino’s experience was that table soccer is a common game, capturing elements of the physical education curriculum that encourages dodging and zigzag activities. He considered that supervision and control of the game from the middle of the court, using a whistle, with the number of children in Ms Sanchez-Sidiropoulos’ class, in the space available on the court, to have been safe and acceptable, even when played on asphalt. He considered that it was a simple, well controlled and popular activity in schools, not to be confused with other games such as British Bulldog or Bullrush.

72. When they gave their concurrent evidence, the experts were asked to make agreed assumptions appearing in MFI 8:

“1.   The children in the class were Year 5 boys and girls aged about 10 years.

2.   There were at least 20-23 children in the PE class.

3.   The game was played by three players being selected by the teacher to start as a tagger on each of three marked lines on the court.

4.   The taggers were tasked to move, including by running, along the three cross-court lines at intervals along the width of the court.

5.   The taggers could only effect a tag with one foot on their designated line at all times.

6.   If it is material to determine, the game was either begun

a.   as per the evidence of the plaintiff and Ms Acheampong, with all children other than taggers as runners, or

b.   with two groups of runners [half each of the class other than the taggers).

7.   In whichever configuration the game was begun, by the time of the plaintiffs fall, all of the children were on the court and most of the children were taggers and five to eight children were runners. That is, all the children in the class (20-23) were on the court.

8.   The object of the game was for the taggers to tag as many runners as possible (ie by touching them) and for the runners to evade being tagged and to cross the length of the court to the opposite base line and for this to continue until all the runners were tagged or the game was terminated by the teacher, whichever earlier.

9.   The runners were free to run and move in any manoeuvre that furthered the objective of their evading the taggers.

10.   The students had previously (in other weeks) been told that they should be aware of the location of other students.

11.   The plaintiff had not been in a collision like the subject collision before in any game or any similar game.

12,   The plaintiff was a runner running near and parallel to the sideline of the court (relatively towards the camera in Exhibit 2B).

13,   Ms Chapman was also a runner, she commenced to move from the area marked J-J on Exhibit 2 B. She was relatively to the plaintiffs left and towards the opposite sideline.

14.   The teacher, Ms Luland, was stationed at the outside of the sideline nearest to Ms Chapman and about halfway down the court, at about the centreline.

15.   Ms Luland used her whistle to blow for the start of each "run" command.

16.   The surface on which the game was played was asphalt.

17.   The game carried an intrinsic risk of falling while running.

18   Selection of the activity was at the teacher's discretion as a matter of professional judgment.

19.   The activity was not the main activity of the lesson but was a warm-up activity intended to be undertaken for ten-fifteen minutes to get the children's' blood pumping and their heart rates up.

20.   There may have been other activities and games that could meet that objective without running on asphalt and without the additional risks of falling added by excitement/distraction and the risk of collision.

21.   The intended lesson is unknown.

22.   The teacher was influenced in the choice of the warm up activity by it being a common desire of students, whether the students in the particular class or more generally she could not recall, to play the game.

23.   The game was commonly played at the school in 2005.

24.   At the time of the incident only five to eight children were runners (as opposed to taggers).”

73. I will return to the experts’ evidence when dealing with the various issues lying between the parties.

The School’s duty of care

74. In resolving the issues lying between the parties in relation to the School’s admitted duty of care to Ms Sanchez-Sidiropoulos, it is necessary to bear in mind that “negligence”, for the purpose of Pt 1A of the Act, means the failure to exercise reasonable care and skill.

The scope and nature of the duty

75. As discussed in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [18] - [22], a consideration of Ms Sanchez-Sidiropoulos’ claims that the School was negligent must begin with the articulation of the duty of care which it accepted that it owed her, together with a consideration of the scope and contents of that duty.

76. The School accepted that its duty was as discussed by Gaudron J in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [104], namely “to take reasonable care to provide a safe school environment”, as further articulated in final written submissions advanced for Ms Sanchez-Sidiropoulos, to be “a positive duty, not merely to refrain from doing something that involves foreseeable risk of injury, but a duty to take reasonable care to provide a safe school environment”.

77. It was also common ground that the School owed no duty to safeguard its students from all perils.

78. In the context of the PE class in which Ms Sanchez-Sidiropoulos fell, the School’s duty was not simply to take reasonable care to avoid a foreseeable risk that students playing table soccer might injure themselves, if they collide and fall. As discussed in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [167], so to approach what here lies in issue “would be to leave unanswered the critical questions respecting the content of the term “reasonable” and hence the content of the duty of care, matters essential for the determination of this case …”

79. Accordingly, even if there was some reasonable course of conduct which the School could have taken, that would have protected students from risk of harm and avoided the injury Ms Sanchez-Sidiropoulos suffered by, for example, not playing table soccer in PE classes on the basketball court at all, the School will not be liable for the damages claimed, unless she establishes that its duty of care, properly considered in light of its scope and content, required that course to be taken.

80. The scope and content of a School’s duty to children at risk of injury while playing games, was considered in Kondrajian, where it was observed at [55] - [56]:

“55    Children, and particularly young children, need protection from their environment, from others and from themselves. Generally, reasonable steps should be taken to guard against foreseeable conduct on the part of children that may result in harm to themselves or others. Some children tend to be mischievous. They may do mischievous things deliberately, and may also be unable to comprehend fully the consequences of what they do: cf Edgecock v Minister for Child Welfare (1971) 1 NSWLR 751 at 758; Williams v Eady (1893) 10 TLR 41 at 42. Children of a particularly young age may also be prone to unpredictability of behaviour: Miller v South Australia (1981) 24 SASR 416. These tendencies are likely to manifest themselves when high-spirited children participate in games, and are factors that a supervising teacher must take into account.

56    Nevertheless, although student participation in games may result in breaches of discipline and irresponsible behaviour, our society recognises that that is no reason, of itself, not to encourage and teach young children to engage in such activities.”

81. In this case, the scope and content of the School’s duty must be approached in the context of the evidence that the State curriculum in 2005 envisaged that games of tag would be played in class.

82. There was no issue that tag games are part of the State’s sports curriculum, which calls for activities to be pursued at primary school, which enhance children’s physical capacities, teach them to think ahead about movement patterns and to respond in various situations. Tag games help children learn various skills which they need to acquire and develop, in order to safely play other games in which the risk of collision exists. They are a precursor to touch football, which the experts agreed was the ultimate dodging game, as well as games such as netball and basketball.

83. Table soccer, like other tagging games, is not a game with fixed rules, like touch football or basketball. On this occasion, it was played as a warm-up activity.

84. Tag games, including table soccer, undoubtedly involve, as the experts agreed, foreseeable risks of collision, falls and injury. That is the result of their aim, namely, to teach students to think ahead and deal with unpredictable paths of running, as well as evasion tactics during team games. As the experts agreed, children participate in many activities which involve such risks. They can materialise during such games, when at primary schools like this School, they are played on asphalt surfaces.

85. The rules of particular games, including the table soccer here in question and how they are supervised and controlled, are directed at minimising such risks materialising. Dr Tronc considered, nevertheless, that table soccer was developmentally inappropriate for 10 year old children. Professor Marino disagreed.

86. Given the evidence about table soccer and the other games that the curriculum provided that Year 5 students should participate in, including touch football, netball and basketball and how they were organised and supervised at the School, it was difficult to accept Dr Tronc’s views.

87. On Ms Luland’s evidence, which I accept for reasons which I will explain, on the day that Ms Sanchez-Sidiropoulos’ was injured, table soccer was played by the class which numbered between 26 to 27 students. They were divided into teams of runners and taggers. The aim was for all runners to be tagged. The game began with one or more students being given the role of taggers. The taggers could only move along marked, straight lines running the length of the asphalt basketball court where the game was played.

88. There was an issue as to whether the game, as played, involved more than one team of runners. Ms Luland’s evidence was that she never had the whole class running at once, but divided the class into teams of runners of 7-12. Her evidence must be accepted.

89. On her blow of the whistle, the first team of runners had to try to reach the other side of the court, avoiding the taggers by unpredictable movements including running in any direction, stopping, dodging or zigzagging as they wished, in order to avoid being tagged. When runners were tagged they had to join the line of taggers. The next team of runners then attempted to reach the other side of the court, when their signal was given by another blow of a whistle.

90. As the number of taggers increased, they were placed along three lines running the length of the court. It became increasingly more difficult for the runners to avoid the growing number of taggers. The game finished when the last runner was tagged. By that time the entire class was on the court.

The risks posed by table soccer

91. As discussed in Kondrajian at [57] - [65], when it is a particular game on which the alleged breach of a school’s duty to a student rests, consideration must be given not only to the particular risks involved in that game; it is also necessary to consider whether any risk of serious injury is real and not far-fetched or remote and whether such risks can be reduced further by training and supervision, catering for the needs of individual children and the exercise of proper control. Where such measures are taken, merely to allow children to participate in a game will not ordinarily involve negligence (see Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272).

92. The foreseeable risk of harm posed by table soccer, it was common ground, is of one child colliding with another, falling to the ground, with resulting potentially serious injury. It is that risk which must be borne in mind, when the question of what a reasonable response to the risk would have been, is considered (see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [59]).

93. The fact that a serious injury such as that which Ms Sanchez-Sidiropoulos claimed she suffered may occur, if children play table soccer on an asphalt surface, does not automatically result in a finding that the School breached its duty of care, even accepting that such an injury was foreseeable.

94. As discussed in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 48, the existence of such a foreseeable risk of injury does not dispose of the question of whether the School’s duty has been breached. The magnitude of the risk and its degree of probability must also be considered, together with other relevant factors.

95. The onus lay on Ms Sanchez-Sidiropoulos to establish that the School or Ms Luland, who supervised the game the day she fell, did not take reasonable precautions or care for her safety, given the nature of the risk in question.

Reasonable care

96. In considering whether the School breached its duty to Ms Sanchez-Sidiropoulos, it is necessary to bear in mind that s 5B and s 5C provide in relation to breach of duty and liability:

“5B General principles

(1)    A person is not negligent in failing to take precautions against a risk of harm unless:

(a)    the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)    in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)    the probability that the harm would occur if care were not taken,

(b)    the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d)    the social utility of the activity that creates the risk of harm.

5C    Other principles

In proceedings relating to liability for negligence:

(a)   the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)   the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)   the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

97. The exercise of reasonable care is sufficient to exclude negligence (see Dederer at [49] - [50]). McHugh J discussed in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, the duty to take reasonable care is always the same - to conform to the legal standard of reasonable conduct in the light of the apparent risk.

98. In this case, as discussed in Kondrajian at [66], the issues lying between the parties must be resolved bearing in mind that:

“… what amounts to reasonable care in a given case must be seen in the context that it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury. Otherwise, as Morris LJ said in Wright v Cheshire County Council (1952) 2 All ER 789 at 796 “only inactivity and inanition could be planned”. And as McNair J observed in Jeffrey v London County Council (1954) 52 LGR 521 at 523:

“[S]chool authorities…must strike some balance between the meticulous supervision of children every moment of the time when they are under their care, and the very desirable object of encouraging the sturdy independence of children as they grow up…”

99. In resolving the cases which the parties advanced, what Gleeson CJ discussed in Rosenberg v Percival [2001] HCA 18; (2005) CLR 434 at [16] must also be born in mind:

“In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated”. [footnotes omitted]

Ms Sanchez-Sidiropoulos’ evidence was not reliable

100. In assessing the evidence of each of the lay witnesses, it had to be borne in mind that they were giving evidence in 2015 about what had occurred in 2005, in the case of the witnesses who were then students, at a time when they were only 10 years old. That their recollections, particularly of the details of what then occurred, was not clear, is to be expected and so their evidence must be assessed carefully.

101. Ms Sanchez-Sidiropoulos’ evidence was that the day she fell was the first time she had played table soccer; it was a faster and more chaotic game than previous tag games they had played, such as Pacman and Octopus, which she described; that the class had been taken by an American exchange teacher, Ms Amy; that she had instructed the class in the rules of table soccer before they began, as to its objectives and aims, but they were not given instructions about safety precautions or dangers; that the game was fast and chaotic and required the students to run as fast as they could from side to side at a frantic pace, zigzagging in order to dodge taggers.

102. From her oral evidence, it emerged that when Ms Sanchez-Sidiropoulos fell, there were about 5 to 8 runners left. Ms Sanchez-Sidiropoulos’ saw Ms Chapman running diagonally before the collision, but did not see her when they collided, because she was then looking straight ahead. She fell forward, landing on her right wrist with her hand flexed and onto her right hip. She then saw that Ms Chapman, was also on the ground. The teacher, who had been at the side of the court, came over about 30 seconds later, to where she was on the ground crying.

103. In cross-examination, Ms Sanchez-Sidiropoulos denied having played table soccer before; or that the class had been taken by the PE teacher who had taught her all year; or that she was not an American exchange teacher. She agreed that the game permitted runners to stop and wait, or change directions, but she said that that she would not stop and always kept moving. She also insisted that it was a very quick, furious game.

104. Ms Sanchez-Sidiropoulos then agreed that the practice in PE was for teachers to explain the rules of a game to the class, even if it had been played before, but denied that this teacher had done so on the day she fell. She agreed that she had been given instructions about playing safely on many occasions, but denied that on this occasion, she had been told to be aware of other children on the court. She also said that she knew that anyway and that it was obvious from other games they had played, including netball and basketball, where she had to avoid others moving in different directions, or coming into her path. She also denied that day having been told that rough play would not be tolerated, but also said that she also knew this anyway.

105. Ms Sanchez-Sidiropoulos also explained her knowledge of the tag game Bullrush, which she said was quite different to table soccer and explained the differences, but insisted that the games had the same concept.

106. For reasons which I will explain by reference to the evidence of other witnesses, I have concluded that Ms Sanchez-Sidiropoulos’ evidence was not reliable in important respects and cannot be preferred over the evidence of other witnesses, in the event of conflict. Their evidence established that table soccer had been played before that day during Ms Sanchez-Sidiropoulos’ PE classes; that the class had been taught the rules of the game before that day; and that they received instructions that day as well. While table soccer was a more energetic game than the Pacman and Octopus Ms Sanchez-Sidiropoulos described, it was quite different to Bullrush. That it was a frantic or chaotic game was not established.

107. The evidence also established that the class was not supervised by an American exchange student, but by the usual PE teacher, Ms Luland, who made a standard form accident report, after Ms Sanchez-Sidiropoulos fell.

The precautions which were taken

108. Contrary to the case pressed for Ms Sanchez-Sidiropoulos, that there was no formal or documented risk assessment undertaken of the safety of table soccer in 2005 by the School or Ms Luland, does not establish that it was unsafe. Any tag game carries a risk of collision and falls. The evidence establishes that both the rules of the game and its supervision were directed at addressing the risks which it did pose, including when played on asphalt.

109. On the evidence of the School’s then principal, Mr Hopley, table soccer is a version of the game of tag which was often played as a warm-up activity at the School during PE classes, both before and after Ms Sanchez-Sidiropoulos’ fall. Table soccer was also played at other schools of which he had been the principal, where it was also played on asphalt surfaces. It is still played even today on that surface.

110. Mr Hopley considered sport to be an important part of the curriculum at this School, for reasons which he explained in cross-examination, and so had himself been involved in the supervision of sport there. He had supervised table soccer being played at the School, which both he and Ms Luland said was very popular with students. He had also observed Ms Luland supervising that game, while he had supervised her teaching, but he was not present when Ms Sanchez-Sidiropoulos fell. On his observation, Ms Luland had properly supervised the playing of this game in her classes. He considered Ms Luland then to have been an outstanding young teacher.

111. Mr Hopley said that the risk of falls had been discussed during staff meetings at the School, when minimising falls were discussed. He agreed that like at other schools, there was a “no running on the asphalt or concrete during playtime” rule. This was, he explained, because of the presence then of hundreds of kids. He considered that situation to be very different to a game of table soccer played during a PE lesson, which he did not consider to be unsafe, even when played on asphalt. Ms Luland had a similar view.

112. Contrary to Ms Sanchez-Sidiropoulos’ understanding, Ms Luland had an Honours degree in Education (Human Movement and Health Education) from the University of Sydney, when she commenced her employment at the School in January 2005. She was Ms Sanchez-Sidiropoulos’ PE teacher that entire year, although she had worked at a summer camp in America before. That is what Ms Sanchez-Sidiropoulos may have had in mind, when she described the teacher as having been an American exchange teacher. On Ms Luland’s evidence, the class had played table soccer from early in the year and, she understood, also the previous year, although she accepted in cross-examination that she could have been mistaken about that. She had told the class about the rules of the game before Ms Sanchez-Sidiropoulos’ accident in June.

108. The curriculum for year 5 in 2005 involved the students in Ms Sanchez-Sidiropoulos’ class playing touch football, basketball, netball, soccer and cricket. Ms Luland described her discussion of the School’s code of conduct in the first PE lesson. She said that in each class she also emphasized fair play, listening, following rules, no fighting, teamwork, positive encouragement and dangerous play. She described her practice of instructing students before the game was played:

“(a)   they had to listen to the whistle;

(b)   they could not run unless they heard the whistle;

(c)   the taggers needed to keep one foot on their horizontal line and not step off their line;

(d)   they needed to be aware of others;

(e)   taggers could only tag between the shoulders and the hips;

(f)   rough play was not tolerated.”

114. Table soccer was one of the regular warm-up activities utilised by Ms Luland, before and after Ms Sanchez-Sidiropoulos’ fall, both in PE and during after school care. Ms Luland supervised the game from about the middle of the sideline, controlling it by use of a whistle. Ms Luland could not recall any other student ever falling during the game.

115. Ms Luland denied that the game had been played in a frantic or chaotic manner. The recollections of Ms Chapman and Ms Acheampong, Ms Sanchez-Sidiropoulos’ classmates, supported Ms Luland’s evidence. It must be accepted.

116. Ms Acheampong also could not remember seeing anyone else falling over during the game, which she called Bullrush. She could remember one girl falling over at lunchtime, but had not seen what caused that fall.

117. On all of this evidence, it simply cannot be accepted that Ms Sanchez-Sidiropoulos’ memory of the events of the day she came to be injured was reliable. The evidence establishes that the day that she fell was not the first occasion on which she had played table soccer and the instructions which Ms Luland gave the class that day was not confined merely to the rules of the game, but accorded with the School’s duty to the students playing that game.

Playing the game on asphalt

118. That foreseeable risks of injury during a particular game can be prevented by the game simply not being played at all, did not require this School to ban table soccer, or other games in which there were risks of collision and fall, being played. That table soccer was played on the asphalt surface of its basketball court, that a collision occurred and that Ms Sanchez-Sidiropoulos was injured as a result, could not of itself establish the School’s negligence.

119. In 2005, the State curriculum required 10 year old children to play team games at school which involved them running, dodging, weaving and in some cases, touching. Such games did give rise to risks of collision, fall and injury. Such risks arose whether the game being played was table soccer, other forms of tag, touch football, basketball, or netball, all games played at this School by Ms Sanchez-Sidiropoulos.

120. Neither Ms Luland nor Mr Hopley, however, considered that table soccer being played on asphalt during PE was dangerous, even after Ms Sanchez-Sidiropoulos’ fall. The evidence established a proper basis for these views.

121. It is unarguable that some risks are more likely to materialise when games are played on the type of asphalt courts used at this and other schools around the State, to deliver the PE curriculum. On the evidence of Professor Marino, some risks of injury are, however, increased when games are played on other surfaces, even grass. It is tackling games like rugby which are too dangerous to play on asphalt. Dr Tronc considered that table soccer was also such a game. Professor Marino disagreed.

122. That controversy has to be considered in light of the injuries which can result from a fall during such a game, which involves tagging, not tackling. Undoubtedly such an injury may be serious, involving a broken bone, for example. But falls onto grass can also result in serious injury. Dr Spira said that both a fall onto asphalt and grass can result in a hyper flexion injury of the wrist, but that there would be less resulting abrasion from the softer surface. Dr Dilley said that even a minor injury from a fall onto grass could result in the development of CRPS, which may be caused even by a slight knock on the back of a hand on a door. Dr Champion agreed.

123. The program to which Ms Luland was teaching was in evidence, although she could not remember what the particular class that day was directed at. The program was based on the NSW Board of Studies Personal Development, Health Physical Education K-6 Syllabus (1999) and the NSW Board of Studies Personal Development, Health Physical Education K-6 Modules document (1999). Ms Luland also described the process whereby she taught particular skills in her PE classes.

124. In cross-examination, Ms Luland agreed that the real objective of a child learning a particular game, was to teach particular skills, one of which was to move safely in an environment where there were other people. She also agreed that the objective of a warm-up activity was to increase blood flow and heart rate, which would not be achieved by the students just sitting or standing. She also agreed that she could that day have selected another warm-up activity.

125. That, it should be observed at this point, was the problem with some of the other forms of tag which on the case finally pressed for Ms Sanchez-Sidiropoulos, ought to have been played that day instead of table soccer. Tag games which involve players not moving, but standing or sitting on the asphalt surface, are unlikely to achieve the aims of a warm-up activity, which are important, if the class is to safely move onto another vigorous game.

126. Ms Luland also explained how the Board of Studies’ syllabus and modules were used to develop the PDHPE program which she pursued. She said that table soccer was a warm-up activity directed to particular games and skills, including spatial awareness. The syllabus and modules were outcome based and did not dictate the particular activity to be used to achieve that outcome. They were at the teacher’s discretion and were determined in light of the particular conditions prevailing, which included the surface available at the school. It was expected that teachers would use their professional care and skill to make judgments about what was appropriate and safe, given that the syllabus covered skills like spatial awareness over Years 3 to 6, with the expectation that skills would be built and consolidated over those years.

127. Ms Luland agreed that her studies had included child development and how physical skills could be fostered through sport and activities. She had not seen a written risk assessment for table soccer, a game with no written rules, but had considered it a safe, age appropriate game for Ms Sanchez-Sidiropoulos’ class to play on the asphalt surface.

128. Ms Luland also described the matters she considered each day, when conducting a PE class, including whether the game planned would be safe for students and would actually warm them up that day; whether the students were correctly attired; and the ground was safe. She followed the documented curriculum requirements, which mentioned warm-up activities and tag games. She agreed that the School’s rules did not permit children to run on the asphalt surface at other times of the day. That did not apply to PE classes.

129. Ms Luland described controlling the game that day with her voice, rather than the whistle, which she used to direct teams of runners to commence running. She did not see Ms Sanchez-Sidiropoulos fall and accepted that she had not warned her of the impending collision. She could not recall whether she first saw her on the ground, or when she had got to her feet. She described her normal practice to look to the left and right, while standing at the centre of the Court, but did not know whether her attention was distracted by something, at the time that Ms Sanchez-Sidiropoulos fell.

130. Ms Luland agreed that sudden changes of direction by children of this age while zigzagging was not predictable, because they were developing and consolidating their spatial awareness and that resulted in the risk of collision, which materialised. She did not agree that other tagging games involved no risk of collision, or that there was a greatly reduced risk when most of the children were sitting on the ground by the end of the game, such as Pacman or Octopus, although she accepted that when players were not moving, the risk was low.

131. The video of a table soccer being recently played at the School was shown to Ms Luland while she was giving her evidence. She said that it depicted the type of game played in her class in 2005, although she thought the whistle had been used differently. She thought that there were a similar number of children on the same asphalt court and that like her, the teacher had been looking left and right, while observing the play. She also said in cross-examination that the type of instruction which she there heard being given “watch yourself Tashi watch where you’re going” was appropriate. She could not, however, remember giving Ms Sanchez-Sidiropoulos or Ms Chapman such an instruction in 2005.

132. These concessions were properly made, but do not establish that table soccer ought not to have been played on an asphalt surface.

133. Mr Hopley’s evidence supported that of Ms Luland. In cross-examination, he was asked about the instructions he had heard Ms Luland give before a game of table soccer, which included that it was a tagging game, not a grab or tackle game; and that there was limited space on the court, so that children had to be mindful of other people’s presence. He did not think it necessary to specifically instruct the children not to collide with each other, that not being what they would do on purpose, given the aim of the game as explained to them.

134. Mr Hopley also explained that the reason for the exclusion of running during playtime and not during games played in PE was because during such organised games children were more alert to the situation, with their senses heightened and they were more careful about collisions. He did not agree that different warm-up activities should have been chosen by Ms Luland, because, he explained, games such as netball and basketball were more intense and carried higher risks of collision, even though there were fewer players involved.

135. Dr Tronc, from his initial reports, appeared to consider that table soccer was such a dangerous game that it ought never to be played at all, particularly by children of this age. That view was ameliorated to that it should not be played on an asphalt surface. As I have said, I am not able to accept his views in that regard. They were not supported by those of Professor Marino, or by the evidence of the School’s experience of the playing of the game on that surface, which suggests that apart from Ms Sanchez-Sidiropoulos’ fall, children were not injured when this game was played at the School.

136. Dr Tronc’s views rested, it emerged, on an understanding that table soccer was a tag game like British Bulldog, which he understood had been banned at various schools in Australia and elsewhere. During the concurrent evidence, Dr Tronc said, however, that he was not aware of the specific differences between the two games, or another tagging game he had mentioned in his report, Cocky Laura. He believed some games allowed pushing and shoving rather than tagging, but could not elaborate further.

137. Professor Marino explained the differences to include that Bullrush did not require taggers to remain in a static line, as required in table soccer, but permitted chasing and that it did not allow runners to stand still, if they wished, without being tagged. Dr Tronc finally agreed that the games were quite different, but did not resile from his view that the risks of table soccer had not been adequately managed by the School.

138. The reasons for the expert’s differences were explored further in the concurrent evidence. Professor Marino agreed that children of age 10 do not have peripheral vision as well developed as in adults and older children, a matter about which Dr Tronc did not consider he had the expertise to deal with. They both agreed, however, that spatial awareness was a taught skill, with teachers aiming to develop capacities and abilities which children of that age are assumed to have.

139. Professor Marino explained that, while he agreed that the taggers standing on their lines increased the risk of collision, if two runners went for the same gap, the rules of table soccer restricted taggers’ speed and acceleration. Those rules had been developed from British Bulldog, in order to minimise the risk of injury. He also agreed that there were other, more sedate, tagging games which decreased those risks even further, for example where students were required to sit on the ground, once tagged, or where taggers were not permitted to move, but could only wave their arms.

140. That it was necessary for a more sedate tagging game to have been played on this asphalt surface, if the School was to meet its duty to Ms Sanchez-Sidiropoulos, was not, however, established.

141. The video recording of a game of table soccer being played at the School, simply did not support a conclusion that this was a such a risky or dangerous game, that it ought not to have been played at all by children of Ms Sanchez-Sidiropoulos’ age at the time of her accident, on the School’s asphalt basketball court.

142. Ms Sanchez-Sidiropoulos’ case was that the game in which she was injured was different to that depicted on the videos, not only in that the game in which she was injured was played at a furious pace, but that it was differently supervised. Her accounts had a considerable impact on the views Dr Tronc formed, particularly those initially expressed in his reports, but I am not able to accept her evidence in this regard.

143. That Ms Sanchez-Sidiropoulos was not an entirely reliable historian, was not surprising, given that she was only 10 years old when she was injured and having in mind all that has befallen her since that fall, which may well have had an impact on her recollection of what happened to her.

144. That recollection was shown to be incorrect in material respects. She remembered not only that the class had been taken by Ms Amy, an exchange teacher from the USA; that she had not played table soccer before; that the game was more chaotic and faster than other games she had played; that the only instructions given were when the teacher blew a whistle from time to time and gave instructions to run on, that the game was being played at a frantic pace by 20-23 players, with players running as fast as they could from side to side to avoid being tagged and zigzagging to avoid people standing on the lines.

145. Ms Chapman had quite a different recollection. She said it was Ms Sullivan who was the teacher; that the game wasn’t rough; that they had been given various instructions; that she and Ms Sanchez-Sidiropoulos were on the same team, running in the same direction when they collided and that they were not running very fast. In cross-examination she said that they had run the same way, found the same opening and ran into each other.

146. Ms Acheampong, who was called by Ms Sanchez-Sidiropoulos, also had a different recollection in relevant respects. She said in her statement that she could not remember whether there was a new teacher or the usual teacher; that some of the runners were fast and others slow; sometimes the play involved running on the whistle to go straight through and sometimes there was a pause and a dash, when she saw an opportunity and that you could run straight or weave and dodge. She did not see Ms Sanchez-Sidiropoulos’ fall.

147. These two accounts accorded with what was depicted on the video, while Ms Sanchez-Sidiropoulos’ account did not.

148. It is also relevant that annexed to Ms Acheampong’s statement was a typed, undated letter, stamped as having been received in March 2009, addressed to a street address in Castlereagh St, which she had signed. The letter referred to the game as table soccer and said:

“Dear sir & madam

My same is Erica Acheampong and I am writing to you this letter in regards to jade sanchez-sidiropoulos who suffered a serious injury to her right hand on 16th June 2005.

I strongly remember that there were no instructions on the safety rules of the game, the only instructions given were how to play that game. The game was called “table soccer". The whole idea of the game is to ran past the people who were standing on 3 lines, one on each one on each line, on the court to the other side without getting tapped and if got tapped you had to join the people on the line as well.

The game was terribly unsafe because of the concrete that we were playing on and also the way the children would tip each other they would sometimes push people instead of tipping them, also it was chaos because you had people running in one direction they would zig zag all over the place trying not to get tipped. It is defiantly[sic] not the first time this has happened, on previous sport days other people were also injured by tripping, falling over and scraping there[sic] knees.

Yours sincerely,

Erica Acheampong”

149. Ms Acheampong’s evidence was that she had recently been shown the letter, but could not remember the circumstances in which it was prepared, but it was her signature. She did have a memory of sitting in front of a computer with Ms Sanchez-Sidiropoulos and her mother and one of them typing something and she signing it, which she said could have been this letter. She did not know whether this was while she was in high school or still in primary school.

150. The proper inference from all of the evidence is that Ms Acheampong was not the author of what was there written, which she said did not revive her memory of the events. That letter supported Ms Sanchez-Sidiropoulos’ evidence, but was plainly at odds with what Ms Acheampong herself remembered, which accorded with the evidence of Ms Chapman and Ms Luland.

151. On Professor Marino’s evidence, it is still the norm in New South Wales and Queensland schools for games to be played outdoors on bitumen and indoors on timber. Dr Tronc did not consider that to make such surfaces safe. Professor Marino considered that it would not be safe for other games to be played on such surfaces, such as rugby, where it would be disastrous, because of the risk of grazing and cuts and infections from falls. Dr Tronc agreed. The experts also agreed that the cost of replacing those courts was prohibitive. Professor Marino’s view was also that the majority of injuries sustained in such games did not result from the nature of the surface, but from strains, sprains and injuries to ligaments.

152. The experts were also asked about age appropriate modifications to games such as basketball and netball. They disagreed as to whether they were principally directed towards skill development, or safety. On the evidence, table soccer is, however, itself a modified version of tag, directed at ensuring safety.

153. On all of that evidence, it must be concluded that the game during which Ms Sanchez-Sidiropoulos fell was not only a more sedate game than she remembered, it was being supervised in the way Ms Luland described. In the result, it cannot be concluded that it was a game which ought not to have been played as it was on an asphalt surface.

Instructions

154. That inadequate instructions were given before the game is not supported by the evidence of what instructions Ms Luland gave, which I have already discussed. That they were, in fact, adequate, is also supported by the School’s experience of the playing of the game, including during Ms Luland’s classes.

155. Dr Tronc considered that it was important to give children of this age instructions about the rules of the game and permissible behaviour and to reinforce, reiterate and remind them with specific instructions and warnings as to what they had to watch out for. Professor Marino agreed, but also considered that what was necessary was impacted by the children’s level of familiarity with the particular activity. Dr Tronc disagreed, given the need, he considered, to constantly test children’s level of understanding.

313. Dr Champion there disagreed that Ms Sanchez-Sidiropoulos had a conversion disorder or was malingering, a matter he considered for the Court to determine. He also considered that the identified inconsistencies had to be considered in light of the fact that Ms Sanchez-Sidiropoulos’ had engaged in sporting activities to a limited extent years ago, when her disorder was relatively quiescent and in response to advice from her medical practitioners. He considered that her lack of trophic changes was consistent with minor to moderate cases of CRPS 1, in the long term. He also considered that she had a genetic vulnerability to CRPS, with a sister who has a similar problem; that she met the criteria for diagnosis presently and in the past; that the nature of CRPS is not yet adequately understood; that psychological influences were present, but were secondary; that conversion disorder was rare and difficult to prove when chronic pain is experienced; that it was not correct that pain management had failed, but now that she was more mature, psychological management was best, delivered in a multi-disciplinary setting.

314. Dr Spira considered that the inconsistencies made diagnosis difficult. The lack of atrophy suggested continuing normal use of Ms Sanchez-Sidiropoulos’ arm, consistent with her sporting prowess and use of her handbag in 2010. It was difficult for him to reach a conclusion as between malingering and a conversion disorder, but he considered that the conflict between the School and her mother was a major contributor to her poor outcome and mental health and had resulted in an exaggerated sense of her own injury.

315. He considered that after nine years of unsuccessful treatment for CRPS, Ms Sanchez-Sidiropoulos required psychological management in an attempt to improve her attitude and functioning, which her mother must be convinced to stop blocking.

316. Dr Dilley here summarised what had been discussed and recorded in the joint report.

The concurrent evidence

330. When Dr Champion, Dr Spira and Dr Dilley gave their concurrent evidence, Dr Champion explained that Ms Sanchez-Sidiropoulos original diagnosis was post traumatic pain disorder and that over time it became to be identified by six different treating doctors to be CRPS, most likely type 1. He agreed with Dr Garrick’s conclusions that the diagnostic criteria for that disorder were met, even though those features had not always been clinically displayed.

331. Dr Dilley said that the ongoing pain had been out of proportion to the original injuries identified. As a hand surgeon, treatment of major pain syndromes were not within his province, his role was to recognise the possibility of their existence and to refer people for treatment.

332. Both Dr Spira and Dr Champion had seen the video in evidence which showed Ms Sanchez-Sidiropoulos suffering muscle spasms. Dr Spira had witnessed similar movements during his examination. He considered that they could be volitional and did not match any organic movement disorder that he recognised. Dr Champion considered that those movements would be an extraordinary thing to do voluntarily, but would be possible with extended coaching, but observed that Dr Garrick had also seen videos which did not affect his diagnosis.

333. Dr Spira said that he had initially accepted that Ms Sanchez-Sidiropoulos had developed CRPS, but that the inconsistencies had led him to believe that there was psychogenic pain disorder, followed by a movement disorder some years later, which had a psychogenic basis. Dr Champion said that CRPS was usually the consequence of physical injury, but had rarely been reported as psychogenically initiated. Dr Spira accepted that some of the history of Ms Sanchez-Sidiropoulos’’ inability to use her arm at times, was consistent with her suffering the syndrome.

334. The doctors also commented on the inconsistencies, including changes in symptoms over time and those found on their examinations. Dr Champion said changes over time were consistent with treatment advice to use the arm and exacerbation. Dr Dilley referred to having administered pin-prick testing with Ms Sanchez-Sidiropoulos’ eyes closed, when she said “I can’t feel that” when touched, which was consistent with her in fact being able to feel the stimulus. He considered that to mean that she was either consciously, or unconsciously, trying to mislead. Dr Spira had observed a similar response, which had to be considered in light of the inconsistency between Ms Sanchez-Sidiropoulos being able to throw a javelin, but not use a pen to write. In his view, the state of her arm currently was not consistent with someone suffering ongoing CRPS, because her muscles were developed, consistent with use, as was skin colour and condition. That, in his view, suggested a conversion disorder.

335. A conversion disorder was explained to be someone truly believing that they suffered from a disability, the example being given was blindness, when they could see.

336. Dr Champion had also undertaken pin-prick testing and had not found what the other two doctors had described. He considered that CRPS had developed over several years, having been significantly provoked by the arthroscopic surgery. He also considered it to be relevant that Ms Sanchez-Sidiropoulos was young and not suffering a severe syndrome, or one associated with a major secondary psychiatric reaction.

337. Dr Champion and Dr Spira agreed that anaesthesia in the fingertips, which Ms Sanchez-Sidiropoulos was now suffering, was not part of the syndrome.

338. Dr Spira explained that in his view diagnosis of CRPS required the presence of two of the clinical criteria identified in the Budapest criteria used by Dr Champion in clinical diagnosis: not allowing touch and clear trophic changes because of disuse. Dr Champion considered that gross changes were not necessary for the diagnosis and Dr Dilley said that in his experience the few cases he had seen had involved some sort of atrophy, even if just the fingertips and that patients wouldn’t let the limb be touched.

339. Dr Spira also said that he had seen complete recovery of a limb affected by CRPS, with use despite pain. It was the disuse of the limb which was the generator of complexities. Dr Champion agreed. In his experience there was more recovery by younger patients, in the order of 75%.

340. Dr Champion and Dr Spira disagreed that CRPS commonly occurred in adolescents, less frequently in young children, but agreed that it was more likely to fluctuate and resolve in their cases, than in adults. Dr Spira said that there were differences in growing individuals, as opposed to those who had ceased growing and that in his view Ms Sanchez-Sidiropoulos had been an adult for a large part of her illness. That view cannot be accepted, given that she was a 10 year old child in 2005 when she fell and so was still only aged 19 in 2015, when he last examined her.

341. This evidence helped explain, however, why, when Ms Sanchez-Sidiropoulos was initially treated as she was, by being encouraged to use her arm, despite the pain it caused, as well as by physiotherapy, she responded and her condition improved, indeed, to the point of recovery.

342. Dr Spira’s observation that over the course of his examinations of Ms Sanchez-Sidiropoulos, she had not used her arm over some six hours, except when placing things in her bag, was not consistent with the use which she usually makes of her arm, which its condition reveals. That Ms Sanchez-Sidiropoulos has been able to continue using her arm, despite her guarding and the pain and tremors which she suffers, to such an extent that it is now normal and without atrophy, is consistent with her current condition not having a physical cause and with her not suffering CRPS.

Expert Evidence – Dr Lee and Dr Apler

343. In their joint report, Dr Lee and Dr Apler agreed that Ms Sanchez-Sidiropoulos did not have a psychiatric condition before the fall and that it was possible that she had a predisposition to the development of a somatoform disorder, pointed to by a family history of chronic pain and disability on the part of both parents, possible somatoform disorder affecting her sister and depression and anxiety affecting both her mother and sister. Dr Lee considered the possibility that she was suffering from a conversion disorder, but not CRPS, to be open.

344. The development of a somatoform disorder which Dr Apler had diagnosed, Dr Lee considered, however, to be contentious. He was persuaded by the opinions of Dr Champion and Dr Garrick, that she had a neurobiological condition. If Ms Sanchez-Sidiropoulos did have CRPS, he considered the appropriate diagnosis to be adjustment disorder. He also considered that the College’s non-acceptance of her illness, may have influenced her illness behaviour.

345. Dr Apler explained the reasons for his opinions, which Dr Lee considered possible, but he was unable to reject the opinions of those who had diagnosed CRPS. Although Dr Lee could not explain the inconsistencies in Ms Sanchez-Sidiropoulos’ physical symptoms, he considered that organic factors for them would need to be excluded, if a somatoform disorder was to be accepted.

346. Dr Apler and Dr Lee also agreed that if Ms Sanchez-Sidiropoulos had a conversion disorder, it commenced in June 2005, but Dr Apler considered that while the fall may have been a factor in the development of that condition, other contributing factors included high parental anxiety and their own conditions, which had perpetuated that disorder. Dr Lee considered these factors to be only possibilities. If the condition was organic, they would have to have a primary role.

347. Dr Apler and Dr Lee also considered the possibility of Ms Sanchez-Sidiropoulos adopting a sick role, which Dr Lee accepted, if she did not have a genuine organic condition. If that role existed, they considered that it would have both conscious and unconscious elements. Maternal anxiety and her attitude to the College may have led to that being perpetuated. Whether her mother’s response had amplified her perceptions, or were the understandable responses to her distress, was also not agreed.

348. It was evident from their joint report that whether or not there were organic causes for the symptoms which Ms Sanchez-Sidiropoulos suffered, had a significant impact on both doctors’ diagnoses.

349. Accordingly, the two doctors were present when the other experts gave their concurrent evidence.

Concurrent evidence – Dr Apler and Dr Lee

350. In their concurrent evidence, Dr Apler explained that he still considered Ms Sanchez-Sidiropoulos to be suffering a somatoform disorder, which is a psychological condition manifesting as physical symptoms, not adequately explained by medical diagnosis, which manifested both pain and neurological symptoms. Dr Apler explained that for him the earlier conclave had raised the question of whether Ms Sanchez-Sidiropoulos’ pain was a psychiatric symptom, CRPS bring a contentious diagnosis, which left room for a psychiatric diagnosis

351. Dr Lee had diagnosed Ms Sanchez-Sidiropoulos to be suffering an adjustment disorder in reaction to physical complaints, but said that if her condition was thought to be psychogenic, then the diagnosis would be different, a pain disorder or conversion disorder but it was difficult to be certain.

352. Dr Apler and Dr Lee agreed that it was possible to have both CRPS and a psychological reaction and that it was likely for there to be an organic substrate and some type of behavioural and emotional overlay.

353. In 2011, Ms Sanchez-Sidiropoulos left school and was hospitalised. She received pain medication, including morphine to the point of becoming unconscious, to which she did not respond. She then received individual and family psychological treatment, to which she did respond. Dr Apler considered that this suggested a non-organic cause of her pain. Dr Lee did not consider that this lack of response was inconsistent with CRPS, but agreed that her response to psychological treatment in 2011, with the result that she was able to cease taking pain killers apart from panadol and nurofen, was possibly consistent with a non-organic cause of pain.

354. Dr Lee considered that inconsistency on presentation and examination was important in this case, because CRPS depends on subjective symptoms, with little objective evidence. That condition can wax and wane over time, but on his examination she had passed a symptom validity assessment test he had administered. Dr Apler had reservations about the reliability of such testing in a forensic setting.

355. Dr Lee considered that Dr Spira’s administration of the pin-prick test had raised questions about Ms Sanchez-Sidiropoulos’ credibility. Dr Apler considered that it raised the question of whether her purpose was to maintain “a sick role”, as a way of dealing with stressors and conflicts, or external gain. In this case, that needed to be assessed in the context of family relationships and any other motivating factors present. Dr Lee agreed that family relationships were more important with children and arose to be considered here.

356. Dr Apler referred to a history of others in her family complaining of pain symptoms, including by her mother affecting her right arm. Ms Sanchez-Sidiropoulos’ pain had become a considerable source of conflict between her mother and the College, which might have contributed to her attention on her right arm and contributed to the chronicity of her symptoms. Dr Lee thought it more likely for that to have occurred with the back injury, from which Ms Sanchez-Sidiropoulos had recovered. They also disagreed as to whether success at sport while experiencing difficulty with writing suggested a psychological condition.

Conclusion

357. The evidence suggests that Ms Sanchez-Sidiropoulos was vulnerable to both physical and psychological injury, which explains her slow recovery from the fall in 2005. It establishes, however, that she did recover from the injuries which that fall caused.

358. It is apparent that as well as the problems with the reliability of Ms Sanchez-Sidiropoulos’ evidence, which emerged at the hearing, there were earlier problems with the histories which she gave those who examined and treated her. It may well be, of course, that when she was a child accompanied by her mother, she was inhibited from giving a complete account of the real effects of what she was experiencing and all that she was doing. The evidence establishes that Dr Champion, for one, was never given an accurate history of Ms Sanchez-Sidiropoulos’ use of her arm after the fall, or the use which she was making of it, when he was treating her.

359. Whatever be the explanation and no matter the unquestionable expertise and dedication of those who treated her for CRPS, I am satisfied that the evidence precludes either Dr Champion’s opinions being preferred over those of Dr Spira and Dr Dilley, or it being found, on the balance of probabilities, that Ms Sanchez-Sidiropoulos now suffers, or has suffered from CRPS.

360. As I have explained, Ms Sanchez-Sidiropoulos was cross-examined about what she had experienced at different times, what she had reported to various doctors and what she had been able to do at school and in various sporting and other activities and generally. It must be accepted that the cross-examination did not put to Ms Sanchez-Sidiropoulos precisely all that appeared in Dr Spira’s report, for example how he had described what he had observed her do at the interview, opening and putting things in her handbag. Nevertheless, what was clearly put to her was that what she did, was inconsistent with her evidence.

361. She was also asked about the pin-prick testing which Dr Spira undertook. She did not accept that the testing had been undertaken as Dr Spira described, and denied having lied to him during the interview. There is, however, no reason to doubt the evidence of the three doctors as to the pin-prick testing which they each administered.

362. Dr Dilley and Dr Spira administered that testing with the same result, namely that she could feel pin-pricks which she denied feeling. In Dr Champion’s case, after receiving Dr Spira’s report, the same test was administered with different results. The obvious explanation for that difference must be accepted. Either consciously or unconsciously, Ms Sanchez-Sidiropoulos was not being truthful in her response, when the tests were being administered.

363. Ms Sanchez-Sidiropoulos also described initially refusing to let Dr Spira touch her hand, then experiencing a muscle spasm, which was why she agreed to let him not only hold her hand, but push down hard on her hand, which she said hurt very much, to the point of causing her to have tears in her eyes. She explained that she didn’t then say anything to Dr Spira, because she believed that her pain was obvious from her face. This evidence was difficult to accept. Dr Dilley also described her inconsistent approach to him touching her arm.

364. The inconsistencies between what the current condition of her arm reveals as to the use Ms Sanchez-Sidiropoulos is plainly able to make of her hand and what she told those who examined her, as to the pain she experiences, on which the differences between the experts turned, cannot be overlooked, in resolving what here has to be determined.

365. Also to be considered, as Dr Apler and Dr Lee observed, is that the very considerable treatment Ms Sanchez-Sidiropoulos has received for CRPS, including significant pain medication, has not helped her and in fact, caused her certain problems at school. She has abandoned that treatment, because she believes that it is not assisting her pain. This is at a time when despite no longer pursuing her former physical activities, it is the consensus of the doctors, that she has deteriorated. That is a psychological deterioration, given the physical state of her hand and arm on the one hand and the symptoms she claims still to suffer, on the other.

366. There is no issue that she does suffer a psychological condition. On all of the evidence I have discussed, it is likely to be the conversion disorder with which she was diagnosed and treated, with some success, as the School accepted.

367. In the result, it must be concluded that Ms Sanchez-Sidiropoulos has not established, on the balance of probabilities, that what she has and continues to experience, is as the result of CRPS.

Was the necessary causal connection established?

368. For Ms Sanchez-Sidiropoulos the view was urged that a finding of causal connection may be made, even where the expert evidence does not rise above the possible. In Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [138] it was observed that “the question is always whether the evidence as a whole establishes causation on a balance of probabilities”.

369. The evidence I have discussed, established, I am satisfied, that Ms Sanchez-Sidiropoulos recovered from the injuries which were caused by the fall, as those who treated her during 2006 and 2007 concluded.

370. Ms Sanchez-Sidiropoulos was helped, to the point of recovery from her pain, when she followed advice to use her arm and actively pursue sport and other physical activities which she enjoyed, with the support of the various treatment which she received. That was at a time when she was also actively engaged in her schoolwork, albeit with the problems I discussed.

371. The symptoms Ms Sanchez-Sidiropoulos developed in 2008 seem to have coincided with scepticism at school at her having ongoing problems with writing and schoolwork, while succeeding at an elite level at sport and other activities which required her to use her arm, and the conflict between the College and her parents, which I have described. The evidence did not establish that either then or now, these problems had a physical cause, given the normal use she is able to make of her arm. The tremors which began in 2011 have not been identified as having any organic cause, but have also not prevented use of her arm, which has not atrophied and has an appearance consistent with normal use.

368. In the face of all of the evidence I have discussed, it is simply not open to conclude, on the balance of probabilities, that the symptoms Ms Sanchez-Sidiropoulos developed in 2008, 2011 and which she now suffers, were caused by her fall in 2005. To the contrary, the evidence is consistent with them having non-organic causes unconnected with that fall.

Damages

373. Despite the conclusions which I have reached, I should say something about the question of calculation of damages, in the event that my judgment that the School is not liable to Ms Sanchez-Sidiropoulos in negligence is overturned.

374. There was no schedule of damages, as Practice Note SC CL 1 requires. The opportunity to make further submissions before judgment was given was thus sought for Ms Sanchez-Sidiropoulos. Given the conclusions I have reached, that will not be necessary.

Findings of fact

375. As was submitted for Ms Sanchez-Sidiropoulos, conclusions on damages depended significantly on her evidence about her experiences of pain and interference with her life and ordinary social and pleasurable activities being accepted. I have explained the difficulties with her evidence being accepted.

376. The following are the findings of fact relevant to the assessment of damages, in the event that I am wrong in the conclusions I have reached as to negligence:

1. The 2005 fall caused the physical injuries for which Ms Sanchez-Sidiropoulos was treated at Auburn Hospital, from which she recovered in some 6 to 8 weeks.

2. The fall also contributed to the pain symptoms for which Ms Sanchez-Sidiropoulos was variously treated and from which she recovered in 2006.

3. The fall did not cause the symptoms which Ms Sanchez-Sidiropoulos came to suffer in 2008 and 2011 or the psychological condition which she continues to suffer, which is likely to be a conversion disorder.

4. Ms Sanchez-Sidiropoulos did not leave the College in Year 11 as the result of bullying by teachers.

5. Ms Sanchez-Sidiropoulos is presently not taking any prescribed pain medication or pursuing treatment which would assist her recovery from her ongoing psychological condition, but there is treatment available which could assist her.

6. Ms Sanchez-Sidiropoulos is unemployed and not pursuing any present course of study, but is not precluded by her condition from pursuing either.

7. Ms Sanchez-Sidiropoulos is capable of pursuing employment in which she could achieve average weekly earnings.

Damages for non-economic loss

377. The evidence established a happy, healthy, active 10 year old child before the fall, but one who, on the expert evidence, was susceptible to psychological injury, given her family history.

378. After the fall Ms Sanchez-Sidiropoulos experienced pain and other symptoms. Pain is a symptom which is not susceptible to reliable objective testing. She received the treatment and achieved the recovery I have described in 2006. In 2008 she developed further symptoms, not caused by the fall.

379. Ms Sanchez-Sidiropoulos experienced problems in classroom activities, while at the same time, being able to pursue very successful participation at elite levels in sport, inside and outside school, as well as in other leisure activities. Her condition also did not preclude her from other physical activities, or a pleasurable family and social life, consistent with her age. It was only after she left the College, that there was a complete falling away from all such activities.

380. There is no obvious organic cause of her current symptoms, particularly the numbness in her fingers and the twisting tremors she experiences. Those tremors date from 2011, when she was diagnosed to be suffering a conversion disorder. Their onset also appear to be connected with her family and its conflict with the College. That Ms Sanchez-Sidiropoulos left in 2011 as a result of bullying by teachers was not established, as I have explained.

381. Ms Sanchez-Sidiropoulos’ symptoms have waxed and waned, but the evidence did not establish any basis for concluding that Ms Sanchez-Sidiropoulos is, as the result of her fall in 2005, incapable of now pursuing the physical and social activities she pursued while at school, or that she is incapable of pursuing education or employment, now or in the future.

382. Consistent with her current symptoms not having an organic cause, Ms Sanchez-Sidiropoulos has now stopped taking pain medication. She plainly can use her arm, despite the pain she says is ongoing, to perform tasks, including the driving she has learned, which explain the normal condition of her hand and arm. She does not drive or use public transport, because of her fear of passing out from the tremors she still experiences.

383. That she cannot alter her course, seek appropriate treatment for her psychological condition, resume her studies and leisure activities and pursue employment, has not been established.

384. In the result, on the basis of all of this evidence, I would assess her non-economic loss as the result of the fall, at no more than the 8%.

Past economic loss

385. There is no claim for this.

Future economic loss

386. Calculation of this head of damages was pressed on the basis of average weekly earnings and a finding that Ms Sanchez-Sidiropoulos’ prospects of future employment are very poor, although she is attempting to fit herself for suitable occupation.

387. This was not established.

388. There was a July 2009 report from Ms Davidson, a hand therapist, who was not required for cross-examination. She described the limitations resulting from the CRPS Ms Sanchez-Sidiropoulos then suffered and the range of movement of her wrist. This assessment was undertaken before she obtained her driver’s licence. There was a second report of September 2013, where it was noted that she had obtained her licence, but refused to use public transport and had ceased most leisure activities, stating that sport aggravated her pain.

389. In the 2009 report Ms Davidson described Ms Sanchez-Sidiropoulos dropping grades from Year 8, attributed to her painful wrist and restricted handwriting, teachers not knowing appropriate software, medical appointments and lack of support and encouragement from the School. Her stated intentions to study forensic science at university, using appropriate computer hardware and software, were encouraged and assessed to require computer skills, the cost of which was assessed. Home modifications and future care requirements were also addressed.

390. In her 2013 report, Ms Davidson described some functional movements to have improved, but others to be significantly worse, with Ms Sanchez-Sidiropoulos’ lack of leisure interests to be of grave concern. It was noted that pursuit of education did not require bilateral hand function, but that her ability to pursue her goals, commitment, determination and resilience appeared to have evaporated.

391. Still, Ms Davidson considered that CRPS did not preclude Ms Sanchez-Sidiropoulos being able to enter the workface. Her refusal to pursue education, to use public transport, to persist with the Dragon Dictate computer program, which was appropriate and would have permitted her to be independent in computer use, were considered to be erroneous decisions. She needed to be in full-time employment, to leave home and live independently.

392. There was also a report from Lumiere Recruitment and Research, as to the salary which Ms Sanchez-Sidiropoulos could command, if employed in forensics.

393. While there was evidence of a past expressed interest in forensic science, the evidence does not permit the conclusion that this was an occupation ever open to her.

394. While at school, Ms Sanchez-Sidiropoulos managed her work with use of a computer. That she cannot now use a computer, if necessary with the assistance of voice recognition software which has been suggested to her, but she has not seriously attempted to use, was not established.

395. The limited attempts she has made to find any type of employment, is not a basis on which it can be concluded that she could not find or perform work, if she sought it.

396. I am not satisfied on the balance of probabilities, that Ms Sanchez-Sidiropoulos is precluded from either study or employment in which she could earn average weekly earnings.

397. That she has past or future care requirements resulting from the 2005 fall was also not established.

Out of pocket expenses

398. Neither past nor future out-of-pocket expenses were particularised.

Future treatment expenses

399. These expenses were also not particularised and an opportunity was sought to supplement the evidence as to cost of treatment, in accordance with the concurrent evidence.

400. There it was the view of Dr Apler and Dr Lee that the treatment which Ms Sanchez-Sidiropoulos should pursue is what had helped her in the past, namely use of her arm, being active, pursuing her interests, study and employment. She would also benefit from psychological treatment and from family therapy. It was also considered that she should not pursue pain and other medications which in the past did not help her, on occasions had produced sedation and had adversely affected her ability to participate in schooling. Nor should she pursue further surgeries.

401. There was no evidence as to the cost of any psychological treatment or family therapy. That the need for such treatment was the result of the fall, was also not established. No basis for such an award is established.

Orders

402. In this case, for the reasons given there must be judgment for the defendant. The usual order is that costs follow the event. In this case that would be an order in favour of the defendant on the basis of costs as agreed or assessed.

403. If the parties seek some different order, they should approach within 14 days. Failing such an approach the Court’s order will be:

Ms Sanchez-Sidiropoulos’ claim is dismissed with an order for costs in favour of the defendant, as agreed or assessed.

All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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Amendments

26 August 2015 - coversheet - counsel name corrected