Stanberg v State of New South Wales

[2025] NSWCA 127

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Stanberg v State of New South Wales [2025] NSWCA 127

Hearing dates:

09 April 2025

Date of orders:

06 June 2025

Decision date:

06 June 2025

Before:

Mitchelmore JA;
McHugh JA;
Griffiths AJA

Decision:

(1) Appeal allowed.

(2) Set aside the orders below dated 4 and 17 October 2024 and in lieu thereof order that:

(a) Judgment for the plaintiff in the amount of $276,500 plus interest.

(b) The defendant pay the plaintiff’s costs.

(3) The respondent pay the appellant’s costs of the appeal.

Catchwords:

NEGLIGENCE — non-delegable duty of care — liability — where appellant injured back during primary school long jump competition — where appellant felt feet hit hard surface — whether failure to take reasonable precautions to ensure adequate amount of properly raked sand in landing area — whether failure to take reasonable precautions was a necessary condition of occurrence of harm

NEGLIGENCE — damages — assessment of damages — assessment of loss of earning capacity for injury negligently occasioned to child — whether injury likely to be productive of financial loss — assessment of damages for non‐economic loss — whether primary judge erred in assessing damages at 20% of a most extreme case

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5I, 13, 16

Supreme Court Act 1970 (NSW), s 75A

Cases Cited:

AEA Constructions Pty Ltd v Wharekawa [2019] NSWCA 176

Coleman v Barrat [2004] NSWCA 27

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447

Dhupar v Lee (2022) 107 NSWLR 492; [2022] NSWCA 15

Doubleday v Kelly [2005] NSWCA 151

Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400

Fegan v Lane Cove House Pty Ltd [2007] NSWCA 88

GIO (NSW) v Fredrichberg (1968) 118 CLR 403

Hall v State of New South Wales [2014] NSWCA 154

House v R (1936) 55 CLR 499; [1936] HCA 40

Kocis v S E Dickens Pty Ltd [1998] 3 VR 408

Kurrie v Azouri (1998) 28 MVR 406

Mummery v Irvings Pty Limited (1956) 96 CLR 99; [1956] HCA 45

Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Aust Torts Reports 81-949

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18

Scott v London St Katherine Docks Co (1865) 159 ER 685

Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1

Stanberg v State of New South Wales [2024] NSWDC 462

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5

The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152

Younie v Martini [1995] NSWCA 532

Zreika v New South Wales [2009] NSWCA 99

Texts Cited:

JD Heydon, Cross on Evidence (14th ed, 2024, LexisNexis)

Category:

Principal judgment

Parties:

Addison Stanberg by his tutor Elise Stanberg (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:
J Turnbull SC and J Sleight (Appellant)
CP O’Neill and JA Charlton (Respondent)

Solicitors:
Neville Hourn & Borg Legal (Appellant)
Wotton Kearney (Respondent)

File Number(s):

2024/00404134

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWDC 462

Date of Decision:

04 October 2024

Before:

Newlinds SC DCJ

File Number(s):

2023/283589

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 24 July 2019, the appellant, Master Addison Stanberg (Addison), participated in a trial long jumping competition at Neutral Bay Public School (School). Addison completed a number of jumps without incident but, on his fifth or sixth jump, felt his feet hit a hard surface upon landing. This caused him to slide forward, fall heavily onto his back or bottom or both and experience immediate back pain. Addison has suffered from back problems ever since.

By his tutor, Ms Elise Stanberg, Addison commenced proceedings in the District Court against the State of New South Wales (State). Addison claimed that the State was vicariously liable in negligence for the School’s failure to take reasonable precautions to minimise the risk of injury from long jumping by ensuring an adequate amount of properly raked sand in the landing area. He relevantly sought damages for future economic loss and non-economic loss.

The primary judge dismissed Addison’s case, holding that sufficient precautions had been taken to prevent the risk of injury from long jumping. This conclusion was underpinned by a suite of findings concerning, amongst other things, the depth of the sand in the pit, the presence of “Softfall” material at the bottom of the pit, the raking of the sand in the pit and the opinion of two supervising teachers concerning the adequacy of the sand in the pit. On the assumption that his conclusion as to liability was mistaken, the primary judge also dismissed Addison’s claim for future economic loss and determined his claim for non-economic loss at 20% of a most extreme case.

Addison appealed, challenging the primary judge’s findings and reasoning on liability and damages. The State defended the primary judge’s findings and reasoning on these issues. By notice of contention, the State also claimed that the decision below should be affirmed on the basis that the adequacy of sand or otherwise was not a necessary condition of the occurrence of any harm. The main issues on appeal were:

1. whether the primary judge erred in concluding that Addison had not established on the balance of probabilities that the School had not taken reasonable precautions to avoid the risk of harm from long jumping;

2. whether the primary judge erred in failing to award damages as a “buffer” or “cushion” against future economic loss, and in assessing damages for non-economic loss on the basis of 20% of a most extreme case; and

3. whether any negligence on the part of the State was a necessary condition of the occurrence harm for the purposes of s 5D(1)(a) of the Civil Liability Act 2002 (NSW).

The Court held (Griffiths AJA, Mitchelmore JA agreeing at [1], McHugh JA agreeing at [2]) allowing the appeal:

As to liability

1. Contrary to the primary judge’s finding, there was no evidence that the bottom of the pit was lined with “Softfall” material: [43]-[52]. It was also implicit in the primary judge’s finding that Addison felt his feet hit a hard surface that there was an inadequate depth of sand below Addison’s feet: [61], [84]. Furthermore, the primary judge gave excessive weight to his assessment and description of the evidence of the supervising teachers: [67]-[71]; and insufficient weight to the fact that the sand in the pit was raked only after every second or third jump: [62]-[63], [74], [75]-[80]. In these circumstances, and also noting that the practical burden of ensuring an adequate amount of properly raked sand was a relatively low one, the primary judge erred in not concluding that Addison had established on the balance of probabilities that the School failed to take reasonable precautions: [93]-[94].

The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308, considered.

2. The primary judge did not err in finding that the principles of res ipsa loquitur had no application to Addison’s case: [88]-[92].

Scott v London St Katherine Docks Co (1865) 159 ER 685; Mummery v Irvings Pty Limited (1956) 96 CLR 99; [1956] HCA 45; GIO (NSW) v Fredrichberg (1968) 118 CLR 403, referred to.

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18, considered.

As to damages

3. The primary judge erred in failing to award buffer damages for future economic loss. It may not be appropriate to award buffer damages if the evidence does not demonstrate that a reduced capacity to earn is likely to produce financial loss: [97]-[98]. But the evidence was sufficient to establish that Addison’s injuries were likely to affect his future income: [99]-[107].

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Zreika v New South Wales [2009] NSWCA 99, considered.

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Aust Torts Reports 81-949; Fegan v Lane Cove House Pty Ltd [2007] NSWCA 88; Younie v Martini [1995] NSWCA 532 at [37] and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1, referred to.

4. The primary judge’s assessment of damages for non-economic loss in terms of 20% of a most extreme case was within the range of reasonable opinion, having regard to the relevant principles under s 16 of the Civil Liability Act 2002 (NSW): [108]-[116].

Hall v State of New South Wales [2014] NSWCA 154; White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152; AEA Constructions Pty Ltd v Wharekawa [2019] NSWCA 176; Dhupar v Lee (2022) 107 NSWLR 492; [2022] NSWCA 15; Doubleday v Kelly [2005] NSWCA 151; Kurrie v Azouri (1998) 28 MVR 406; Coleman v Barrat [2004] NSWCA 27; Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400, referred to.

As to causation

5. The relevant question is whether Addison would have experienced a similarly hard landing had there been an adequate amount of properly raked sand where he landed: [117]-[118], [123]. This test is met, since the evidence establishes that it is more probable than not that Addison’s feet would not have hit a hard surface had there been an adequate amount of properly raked sand where he landed: [119]-[123]. The fact that the same injuries might have been suffered had there been an adequate amount of sand is not determinative: [124].

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19; Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5; Kocis v S E Dickens Pty Ltd [1998] 3 VR 408, referred to.

JUDGMENT

1. Mitchelmore JA: I agree with Griffiths AJA.

2. McHugh JA: I agree with Griffiths AJA.

3. Griffiths AJA: This appeal is from a judgment of Newlinds SC DCJ, which is reported as Stanberg v State of New South Wales [2024] NSWDC 462 (PJ or Primary Judgment). His Honour dismissed the appellant’s claim for damages in relation to injuries which he sustained on 24 July 2019, while attempting the long jump at Neutral Bay Public School, when he was aged 11. He was 16 years of age when the matter came to trial and he is now 17. I mean no disrespect if I refer to him as Addison. Addison’s mother has acted as his tutor in both the proceedings below and on appeal.

4. In essence, Addison claimed that the State was vicariously liable in negligence for the School’s failure to take reasonable precautions to minimise the risk of injury from long jumping by ensuring that there was adequate sand in the long jump landing area and that it was properly raked.

5. The primary judge dismissed the case, finding that the School had taken sufficient precautions to ensure that there was adequate sand in the area. For completeness, however, his Honour proceeded to consider and determine Addison’s claims for damages. Relevantly, he dismissed the claim for future economic loss and determined that the claim for non-economic loss equated to 20% of a most extreme case.

6. Addison relies on an amended notice of appeal filed 6 February 2025, which challenges several of the primary judge’s findings on liability as well as his findings on non-economic loss and future economic loss.

7. By notice of contention, the State claims that the primary judge’s decision on liability should be affirmed, on the basis that the adequacy of sand or otherwise was not a necessary condition of the occurrence of any harm to Addison.

8. For the following reasons, I propose that the appeal on both liability and damages be allowed and the notice of contention be dismissed.

9. It is desirable first to summarise the primary judge’s reasons on liability, causation and damages. I shall address the parties’ primary submissions as part of the later consideration and determination of the appeal and notice of contention.

Primary Judgment summarised

10. After summarising the background facts and relevant procedural history, the primary judge identified the following issues for determination:

(1) By reference to s 5B of the Civil Liability Act 2002 (NSW) (“CLA”), what is the relevant risk of harm?

(2) What happened on 24 July 2019?

(3) How much sand was in the landing zone at the time of the relevant jump?

(4) If it is possible to answer question (3), was that amount of sand sufficient “precaution" as that concept is understood in the CLA, so that a failure to have extra sand amounted to a breach of duty of care by the Defendant?

(5) Is s 5I of the CLA an answer to the Plaintiff’s claim?

(6) If there has been a breach of duty of care, did it cause any significant injuries or disabilities to the Plaintiff or at all?

(7) What is the quantum of any damages to which the Plaintiff may be entitled, including the quantum of any future economic loss?

(1) The first issue: risk of harm (Primary Judgment at [17]-[20])

11. The primary judge identified the relevant “risk of harm” for the purposes of s 5B of the Civil Liability Act 2002 (NSW) (CLA) as “the risk involved in participating in the sport of long jump where any attempt by a person to jump as far as they can carries with it a risk of being injured upon landing”. There was no issue below, nor on appeal, concerning this ruling.

(2) The second issue: the incident (Primary Judgment at [23]-[26])

12. The primary judge approached the second issue by considering the evidence of two teachers, Ms Remenyi and Ms Nero, who were supervising the long jump on 24 July 2019. Neither of them recalled anything out of the ordinary on the day of the incident. Neither teacher had any recollection of Addison suffering or reporting an injury or incident on the day. The primary judge also noted and accepted what he described as Ms Remenyi’s evidence that she considered on the day of the incident that there was enough sand for the pit to be safe for use. This view of Ms Remenyi’s evidence was accepted notwithstanding that the primary judge regarded Ms Remenyi’s evidence generally as vague.

13. His Honour also accepted the evidence of the School Principal, Mr Tan, who said that sand was ordered and delivered to the School to fill the pit at the start of each year’s athletics season, including in 2019. This was corroborated by an invoice and delivery docket dated 20 June 2019 for sand.

14. The primary judge considered that there was a contest as to whether the teachers’ evidence was capable of grounding a finding that they had taken steps to satisfy themselves as to the amount of sand in the pit. After noting that neither teacher gave direct evidence that they measured the level of sand and thereby formed a conclusion, his Honour said at PJ[25] that it was unrealistic to “expect evidence at that granular level of detail from witnesses recalling what happened on a day which, as far as they were concerned, was wholly unremarkable, some 4 years after the event”. His Honour had a “strong impression”, however, that both teachers “were well aware of the purpose of the sand, being to cushion the landing of the children and prior to the event being commenced and throughout, they, without conducting some form of formal measurement, as a matter of subjective opinion, formed the view that the amount of sand in the pit was adequate” (PJ[26]).

(3) The third issue: the amount of sand in the pit (Primary Judgment at [27]-[34])

15. The primary judge analysed Addison’s evidence regarding the amount of sand in the pit. His Honour accepted Addison’s recollection that, on about his fifth or sixth jump, he landed on his feet in the sand but immediately felt that his feet hit a hard surface below the sand, fell backwards on his bottom or back or both and immediately felt significant pain in his back (PJ[27]). His Honour also accepted that Addison was giving his best and honest estimate in his evidence that, at some point during the day of the incident, he noticed that the level of sand was approximately 10 cm below the top of the pit. The primary judge noted that no other direct evidence had been given concerning the depth of sand, save for “the teachers’ conclusionary opinion that it was adequate”.

16. Although his Honour found that Addison’s evidence was honestly given, he did not consider it sufficiently reliable to ground a finding as to the level of sand below the lip of the pit. This was because it was evidence given by a 16 year old boy concerning “something he estimated based on observation, as a measurement some four years earlier” (PJ[30]). The primary judge found, however, that this evidence was sufficient to find that “the sand was not up to level with the lip of the pit”.

17. The primary judge accepted Addison’s evidence that one of the students had the task of raking the sand between jumps and that his evidence, together with that of the teachers, was that raking did not occur between each jump, but only after every few jumps (PJ[31]). His Honour reasoned that there was no need to measure where a long jumper had landed by reference to the displacement of the sand; rather, this was done by eyesight based on the position of cones placed at different positions alongside the pit, which were used as measurement tools.

18. The primary judge then considered the following photograph showing Mr Tan standing by the long jump pit, holding a tape measure which purported to show the depth of the pit (Exhibit U):

19. The primary judge accepted that the pit was in the same condition at the time of the incident as when the photograph was taken. He also accepted that the photograph demonstrated that the pit was between 30 cm and 35 cm deep, being “probably closer to 35cm”. Having done so, his Honour then reasoned as follows at PJ[34] (emphasis added and noting the significance attached to the presence of “Softfall”, which is material designed to cushion falls and is commonly used in playgrounds):

Even if one accepts the Plaintiff's evidence at its highest, that would mean that there was 20 cm of sand, combined with “Softfall” material, in the pit so as to cushion his landing and fall. If I proceed on the basis that the pit was not filled to the top but do not accept the 10cm estimate, then the sand was probably about 30cm deep. On the Plaintiff’s own expert’s opinion, that is adequate.

(4) The fourth issue: were adequate precautions taken (Primary Judgment at [35]-[54])

20. On the central issue whether adequate precautions were taken, the primary judge found that sand had been delivered to the School in June 2019 and was used to fill the pit to be ready for athletics competition. Although the two supervising teachers’ evidence was described as “vague”, his Honour accepted their evidence that they formed an opinion that there was sufficient sand in the sand pit (PJ[35]). His Honour added that he thought it “inconceivable that [Ms Remenyi and Ms Nero] did not consider the question of safety on the day”. After noting that their opinion that there was sufficient sand did not determine the question whether, objectively, adequate precautions were taken, the primary judge stated at PJ[35] that the two teachers’ opinion “is a relevant precaution of itself and is relevant to my resolution as to that objective fact”.

21. The primary judge then addressed the evidence given by Addison’s expert witness, Mr Williams, concerning the amount of sand necessary as a proper safety precaution. Mr Williams gave evidence that, based on standards set for international athletic events by the International Association of Athletics Federations (IAAF), the sand needed to be about 30 cm deep [2 Blue 554]. Although Mr Williams was not cross-examined, the primary judge said that he did not accept Mr Williams’ “universal opinion” that a minimum depth of 30 cm was also needed for school children. The primary judge said that it was “axiomatic” that the amount of sand considered to be adequate for primary school children in a trial long jumping event would be less than for adults in an international competition. His Honour added, however, that what he described as Mr Williams’ “exacting standard” was in any event met because the primary judge considered that the sand was probably about 30 cm deep (PJ[37]). Although not explicitly stated, it appears that the primary judge considered that this was the depth of sand throughout the pit, including in the area where Addison landed.

20. The primary judge noted that the relevant question posed by s 5B(2) of the CLA is whether a reasonable person in the circumstances would have taken the suggested precautions against the risk of harm, taking into account various matters, including “the probability that the harm would occur if the precaution was not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity”. At PJ[39], the primary judge emphasised the “great social utility in primary school students being able to participate in as many sports as possible”. After describing the task of maintaining a depth of at least 30 cm of sand in the pit as a burden, albeit not a great one, his Honour viewed it as more important that the probability of a not insignificant injury being suffered by a primary school child if the sand was less than 30 cm deep was “on the medical evidence, remote” (PJ[39]).

21. Significantly, the primary judge made an express finding at PJ[40] that he was satisfied that Addison had suffered a significant spinal injury as a result of the way he landed. But his Honour then added that the risk of such a significant injury by a primary school child in the circumstances was “highly unlikely”.

22. The primary judge found that merely because Addison sustained a significant injury to his back by the way he landed did not mean that there was anything wrong with the precautions taken by the School, nor warrant a finding that there was insufficient sand in the pit. He referred to the evidence given by Addison’s expert medical witness, Dr Bodel, who opined that “whilst … it [is] probable that some form of trauma caused by the incident has caused the disc problem that the Plaintiff now suffers from … [and] whilst disc injuries in young children is very rare, they can occur with minimal trauma, sometimes just from jumping around, putting on seat belts, coughing, or turning awkwardly” (PJ[41]).

23. The primary judge explained at PJ[45] why he did not accept Addison’s claim that this was a case which attracted the res ipsa loquitur principle. In brief, those reasons were as follows:

1. In the context of injuries to school children while engaged in sport or play-type activities at school, the fact that a risk was foreseeable, preventable and in fact eventuated does not mean that there was any negligence. His Honour referred to this Court’s decision in The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 for the proposition that a school is not absolutely liable for injuries sustained by pupils when they are under the supervision of teachers.

2. If Addison’s evidence was accepted that when he landed his feet connected with the bottom of the pit, which caused his feet to slide and for him to fall backwards and land heavily, this did not itself bespeak a failure by the teachers to take reasonable precautions against the risk nor that the level of sand was inadequate. Moreover, it did not prove that reasonable precautions had not been taken. Referring again to the teachers’ evidence, his Honour said that they were conscious of a need for there to be adequate sand in the pit; that they had considered that matter and formed the view that the level of sand was adequate. This was found by the primary judge at PJ[46] to demonstrate that adequate precautions had been taken. The primary judge’s reliance on the teachers’ evidence, and his assessment of what in fact that evidence was, are challenged on the appeal.

3. Significantly, at PJ[47], his Honour then added that another reason for not applying res ipsa loquitur in this case was because the “bottom of the pit was in fact made of ‘Softfall’ material”. His Honour added that there was no evidence before the Court to suggest that such material, which his Honour added was material which itself amounted to a significant precaution against the risk, was in any way inadequate. As will emerge, the significance the primary judge gave to “Softfall” is strongly challenged on the appeal.

4. Finally, in response to the suggestion that there was inadequate raking done to keep the sand depth even, his Honour stated at PJ[48] that he believed it was an adequate precaution to have students undertake that task under the direct supervision of teachers. This finding is also challenged.

26. The primary judge then stated his central findings and reasoning as to why he was not satisfied that Addison had established that the School had not taken adequate precautions against the risk of harm. In brief, his Honour reasoned as follows:

1. He was not satisfied that there was inadequate sand in the pit nor that the use of the “Softfall” material would itself have been insufficient (PJ[49]).

2. He reiterated that the risk of serious injury of a primary school child engaging in the long jump was remote and the School took reasonable precautions against the risk by adding sand to the pit at the beginning of the season, having teachers supervise the children’s activities (which teachers formed an opinion as to safety on the day), as well as supervising the raking of the sand “so as to ensure the sand was raked after every second or third jump” (PJ[50]).

3. Reiterating his view that a distinction needed to be drawn between an international athletics meeting and a school athletics trial, his Honour considered that although there were no particular burdens in the School taking precautions to avoid the risk, there was no need to “mimic the standard of a high-level athletics carnival”. Otherwise, this would cause an undesirable diminution in the social utility of school children engaging in sporting activities (PJ[51]).

4. Addison’s liability claims should be rejected on the basis that he was not satisfied that the School had not taken all reasonable precautions against the risk of injury (PJ[59]).

(5) The fifth issue: application of s 5I of CLA (Primary Judgment at [55]-[59])

27. The primary judge considered the State’s submission that s 5I of the CLA was an answer to Addison’s claim, since there was an inherent and unavoidable risk of injury in long jumping. He noted there was “significant and confusing overlap between the Defendant’s case that it took adequate precautions to prevent serious injury, and that no adequate precautions could have been taken to avoid these types of injury”. He also tentatively expressed the view that reasonable precautions could be taken to reduce the chance of the risks of long jump eventuating. However, he preferred to “decide the matter by the root of a finding that I am not satisfied that the Defendant did not take all reasonable precautions against the risk of injury”. Neither party challenges this aspect of the Primary Judgment.

(6) The sixth issue: causation (Primary Judgment at [60]-[72])

28. The primary judge considered the issue of causation of loss on the assumption that his conclusion concerning liability in negligence was mistaken. After reviewing the relevant lay, expert and documentary evidence concerning Addison’s medical status following the incident and thereafter, his Honour found that Addison had “suffered significant structural damage to his L4/5 disc which has caused permanent structural damage to his spine, which will not resolve and will cause ongoing, intermittent pain”. This injury to some extent “interfered with his ability to enjoy life to date” and would “continue to do so”. On the issue of causation, the primary judge accepted that Addison may have suffered the same injury regardless of any precaution the School might have taken. On balance, however, he considered that “if there was insufficient sand in the pit, that probably materially contributed to this injury” (PJ[72]).

29. The issue of causation is raised by the State’s notice of contention.

(7) The seventh issue: damages (Primary Judgment at [73]-[78])

30. With evident reference to Addison’s claim for non-economic loss, the primary judge reiterated at PJ[73] that Addison’s injury was “significant, permanent, causes pain” and that Addison would “continue to live with adversity which he will need to cope with”. His Honour concluded that he would have assessed Addison’s non-economic loss as 20% of a worst case (see at PJ[78(1)]), having previously noted at PJ[75] (set out at [31] below) that he had included an amount for pain and suffering in that assessment.

31. As to future economic loss, the primary judge noted at PJ[74] that Addison claimed “a general and very non-specific diminution in earning capacity based on him having to live life with a bad back”. He noted that neither doctor who gave evidence “recommends a life of hard labour”. However, the primary judge considered that it was “highly unlikely that the Plaintiff was ever destined for such a working life”. His Honour described Addison as “bright, motivated, charismatic, and ambitious” and considered he “would continue to succeed at most things he is motivated to do well in”. In these circumstances, his Honour explained at PJ[75] why he was not satisfied that Addison would suffer any diminution in earning capacity:

I do accept that he will suffer ongoing pain and suffering which will be intermittent, and from time to time may cause him reasonably acute problems. As Dr Bodel explained however, if he continues to maintain his fitness and keep his weight under control, he will be able to cope. Having regard to his character I think it is highly likely that he will succeed in that regard, he should be able to live a good and full life. Nonetheless, I have built into my assessment of noneconomic (sic) loss damages, an amount for that ongoing pain and suffering.

32. The primary judge’s assessment of damages is challenged on appeal only in relation to non-economic loss and future economic loss.

Consideration and determination

Liability

33. As was made clear in [13] of the statement of claim filed 6 September 2023, Addison’s claim for damages was based on an allegation that his injury was caused by the defendant breaching the non-delegable duty of care it owed to him in failing to take precautions against the risk of injury. Two of the stated particulars for that breach were:

1. failing to inspect the pit prior to each jump to ensure that it contained an adequate amount of sand to facilitate injury free jumping; and

2. failing to inspect and rake the pit prior to each jump, if necessary to ensure that the sand was evenly distributed to facilitate injury free landing.

34. It is significant to note that the pleading was based on the notion of “an adequate amount of sand” for the stated purpose, without identifying any arithmetical measurement. The appeal was also conducted on that basis, with particular reference to the proposition that it should be extrapolated from the accepted fact that Addison’s feet hit a hard bottom which caused him to fall backwards. This was because there was insufficient sand where he landed.

35. Appeal grounds 1 to 5 challenge the primary judge’s findings concerning the adequacy of sand in the long jump landing area. Addison submits the primary judge ought to have found that the sand was not reasonably adequate for the purposes of providing a safe long jump landing. His submissions traverse various issues, including the depth of the pit, the presence of Softfall in the pit, the amount of sand actually in the pit, the opinion of the teachers concerning the adequacy of the sand, the amount of sand which reasonably ought to have been in the pit, the raking of sand, the application of s 5B(2) of the CLA, the inferences to be drawn from the evidence regarding the adequacy of precautions and the principle of res ipsa loquitur.

36. I will address those matters in turn.

Depth of the pit

37. Addison submits that the only real evidence before the Court concerning the depth of the pit was Exhibit U (see at [18] above), from which the primary judge erroneously inferred that the pit was “30 cm deep, probably closer to 35cm”. This finding is said not to have been open to the primary judge in circumstances where it was apparent that the tape measure visible in Exhibit U was kinked, the tape measure did not seem to be vertical, and “there was a possibility of parallax error as the tape was not against the edge of the pit”.

38. In response, the State emphasises that the primary judge offered the parties an opportunity to measure the depth of the pit after day 2 of the hearing and to tender the results the following day. The primary judge foreshadowed that, if neither party took up this offer, he would make a finding “based on that tape measure photo” that “the depth of the pit is somewhere between 30 and 35 centimetres”. The State submits that Addison’s failure to take up this offer amounted to an admission that the depth was between 30 and 35 cm.

39. In reply, Addison submits that his failure to take up the primary judge’s offer to measure the pit was not an admission of fact, nor was the primary judge entitled to make a finding to that effect in circumstances where the offer was made in the middle of a trial and Addison did not have the benefit of an expert.

40. The issue of the depth of the pit is relevant because it bears upon what I consider to be the more important issue, namely the level of the sand in the area where Addison landed. I will defer consideration of the depth of the pit until I deal with the critical question of the depth of sand in that area.

Presence of “Softfall”

41. Addison submits that there was no evidence to support the primary judge’s finding that the bottom of the pit was covered with “Softfall”. He contends that the only evidence as to the presence of Softfall near the pit was given by Mr Tan, who accepted that “the surface that’s around” the pit was made of Softfall, but gave no evidence concerning the makeup of the bottom of the pit.

42. The State submits that Mr Tan gave evidence that the pit was “overlaid” with Softfall and that, in any case, it is readily apparent from the photograph in Exhibit U that the bottom of the sand pit is lined with Softfall.

43. I accept Addison’s submission that there was no evidence which supported the primary judge’s finding at PJ[47] that “the bottom of the pit was in fact made of ‘Softfall’ material …”. Contrary to the State’s contention, Mr Tan’s evidence did not support that finding. When Mr Tan was asked in cross-examination whether he knew what was the surface “around that pit” (emphasis added), he said that it was “Softfall”. This evidence was given in the context of Mr Tan looking at the photograph of the pit in Exhibit A. That photograph showed the pit with varying amounts of sand, which covered virtually all of the bottom of the pit. Contrary to the primary judge’s finding, Mr Tan did not say that the bottom of the pit was covered by or made of Softfall. His response was directed squarely to the surface which was “around” the pit.

44. It appears that the primary judge may have made this error relying upon the submission made by the State’s counsel in closing address when he said:

… we know what's on the bottom of this pit. It's the Softplay (sic) because
Mr Tan told you that. Softfall, sorry, Softfall.

45. As noted above, Mr Tan gave no such evidence.

46. Nor do I accept the State’s submission that the photograph in Exhibit U readily shows that the bottom of the sand is lined with Softfall. The need for the Court to exercise particular caution when reviewing photographs as an evidentiary aid is well established. Hence, in JD Heydon, Cross on Evidence (14th ed, 2024, LexisNexis) at [1280], it is stated (footnotes omitted):

Photographs cannot be relied on as proof in themselves of the dimensions of the objects depicted or their relative proportions. Photographs can be deceptive, particularly in relation to perspective and distance. Care must be taken to ensure that photographs are not used as the sole source from which a primary fact is inferred where that fact is not revealed on their face. It is necessary that there be evidence identifying the person, location or chattel photographed with the photograph. That evidence commonly comes from the photographer, but need not. There should be evidence of the precise position of the camera when the photographs are taken.

47. The need for caution is particularly acute in considering whether Exhibit U provides reliable evidence of the depth of the pit having regard to the fact that the tape measure is not vertical, nor does the bottom of the tape measure appear to touch the bottom of the pit as opposed to some amount of sand covering the bottom of the pit.

48. This sits uncomfortably with Mr Tan’s evidence that the person who took the photograph “dug down to the bottom of the pit”. Moreover, a visual examination of the photograph does not support the State’s claim that it shows that the bottom of the pit is lined with Softfall. Even if it could be assumed that the dark material on the side of the sand pit is Softfall, that assumption cannot be extended to the bottom of the pit, which is substantially covered by sand of varying depths.

49. The primary judge’s error of fact relating to Softfall covering the bottom of the pit is a material error. His Honour’s belief that the bottom of the pit was in fact made of Softfall material was relied upon by him in at least three important respects. First, his Honour reasoned at PJ[34] that, accepting Addison’s evidence at its highest, there was 20 cm of sand in the pit which, when combined with “Softfall” material, would cushion Addison’s landing and fall.

50. Secondly, at PJ[47], his Honour again made reference to the fact that the bottom of the pit was made of “Softfall” in rejecting Addison’s claim that the School had not taken adequate precautions to avoid the risk of harm.

51. Thirdly, at PJ[49], his Honour stated that not only was he not satisfied that there was inadequate sand in the pit, he added that he was not satisfied that the use of “Softfall” would itself have been insufficient. This finding is plainly predicated on the primary judge’s erroneous belief and finding that Softfall covered the bottom of the pit.

52. It is plain that this erroneous finding of fact was essential to his Honour’s central conclusion that Addison had failed to demonstrate that the precautions taken by the School to avoid the risk of harm were inadequate. I consider that this provides a sufficient basis to allow the appeal in relation to liability, as will be further elaborated upon in my discussion below regarding inadequacy of the precautions.

Depth of sand in the pit

53. Addison submits that the primary judge erred in rejecting his unchallenged evidence given during cross-examination that the level of sand was approximately 10 cm below the edge of the pit. Even if Exhibit U was accepted on its face, Addison submits that the primary judge should have found that the depth of the sand was between 20 and 25 cm. It was further submitted that this calculation would also take “no account of erosion by previous jumps”, which could have reduced the depth of sand by up to a further 10 cm.

54. The State contends that Addison’s evidence regarding the figure of 10 cm should be found to relate to the space between the top of the sand and the top of the pit.

55. The State submits that the primary judge was entitled not to make a finding that the sand was 10 cm below the top of the pit in circumstances where he had some concerns regarding the reliability of Addison’s evidence. The State also submits that there is no evidence to support Addison’s submission concerning additional erosion caused by previous jumps. It pointed to Ms Remeneyi’s evidence that she would not have allowed students to jump into a pit resembling Exhibit A (which was a photograph of the long jump landing pit with only a small amount of sand at the bottom of the pit) because “it doesn’t have enough sand in it”.

56. This issue relates to the primary judge’s finding at PJ[34] regarding the depth of the sand in the area where Addison landed:

Even if one accepts the Plaintiff's evidence at its highest, that would mean that there was 20 cm of sand, combined with “Softfall” material, in the pit so as to cushion his landing and fall. If I proceed on the basis that the pit was not filled to the top but do not accept the 10cm estimate, then the sand was probably about 30cm deep. On the Plaintiff’s own expert’s opinion, that is adequate.

57. As has already been noted, this reasoning is seriously flawed because the primary judge assumed, without any supporting evidence, that the bottom of the pit was covered with Softfall which, when combined with 20 cm of sand, would cushion his landing and fall. The figure of 20 cm of sand was arrived at by subtracting Addison’s evidence that the level of the sand was 10 cm from the top of the pit from the figure of 30 cm which the primary judge found at PJ[33] to be the minimum depth of the pit. His Honour then added that if Addison’s estimate of there being a space of about 10 cm was not accepted, the sand was probably about 30 cm deep, which satisfied the standard put forward by Mr Williams.

58. It is not easy to follow the logic underlying the primary judge’s alternative finding at PJ[34] that the sand was probably about 30 cm deep (assuming that Addison’s evidence of there being a 10 cm gap was not accepted). This finding follows on from the earlier findings at PJ[33] to the effect that it was “entirely clear” from Exhibit U that the pit “is at least 30cm deep, probably closer to 35cm”. The stated hypothesis of the alternative finding was that the pit was not full to the top and Addison’s estimate of a 10 cm gap was not accepted. Given those predicates, it is difficult to see how the depth of the sand could be viewed as being about 30 cm deep. First, that figure equates with the minimum depth of the pit as found by the primary judge at PJ[33] and must mean that the sand was filled to the top of the pit. But that is contrary to one of the predicates of the hypothesis. Secondly, if the primary judge intended to rely on his earlier finding that the depth of the pit was “probably closer to 35cm”, this means that if the sand was at least 30 cm deep there was a gap of about 5 cm between the top of the sand and the top of the pit. There was no evidence before the Court below which indicated that the gap was only about 5 cm and not the 10 cm figure estimated by Addison during cross-examination.

59. Furthermore, as noted above, the primary judge’s finding that the sand was probably about 30 cm deep relied heavily on his Honour’s examination and analysis of Exhibit U. The photograph appears to show the measurement of the depth of the pit at a particular point but the evidence leaves entirely unclear whether the depth was the same at the point of the pit where Addison landed. Putting aside Addison’s criticisms of the evidentiary value of the photograph given the kink in the measuring tape, the State never contended that the measurement was an accurate reflection of the depth of the pit in the landing area. And although Mr Tan gave evidence that the person who took the photograph “dug down to the bottom of the pit”, that evidence presumably related to the spot shown in the photograph where the measurement tape was placed. There was no evidence that the place where the measurement tape was positioned was the place where Addison landed. Nor did the evidence indicate one way or the other whether the bottom of the pit was entirely flat or undulated.

60. Despite the difficulty of following the logic of the primary judge’s reasoning on this issue, I am not persuaded that his Honour erred in not accepting Addison’s estimate of the size of the gap. There are grounds to doubt the reliability of Addison’s evidence on this particular matter. His estimate of about 10 cm related to the depth of the sand where he landed as opposed to the gap between the top of the sand and the top of the pit. It was only during cross-examination that he confirmed that estimate, but that evidence was given in response to a proposition from the cross-examiner that Addison was “saying that there was a 10-centimetre drop from the top of the surface of the pit to where the sand layer was”. Hence there was some confusion in Addison’s evidence.

61. I consider that greater significance attaches to Addison’s evidence that it was only on his fifth or sixth jump (when he sustained his injury) that his feet landed on a hard surface, which caused him to fall backwards. That evidence was accepted by the primary judge. In my view, it is necessarily implicit in that finding that there was an inadequate depth of sand below Addison’s feet when he landed (see at [81]ff below). The primary judge made no attempt to reconcile his acceptance of this aspect of Addison’s evidence with his other finding that the sand was probably either 20 cm deep if Addison’s estimate was accepted regarding the gap from the top or about 30 cm deep if Addison’s estimate was not accepted.

62. The drawing of this inference is also supported by Addison’s evidence that the pit was not raked after every jump. In cross-examination, Addison was adamant that the pit was not raked after every jump. He said that raking only happened after every second or third jump. This evidence was accepted by the primary judge at PJ[50]. But his Honour concluded that the School had taken reasonable precautions against the remote risk of serious injury by adding new sand to the pit at the beginning of the season, having the long jumping event supervised by teachers (who formed an opinion as to the safety on the day) and supervising the raking of the sand (so as to ensure the sand was raked after every second or third jump).

63. I respectfully disagree with this reasoning. Merely because new sand was added to the pit at the beginning of the athletics seasons says little or anything about the depth of the sand in the landing area where Addison jumped on 24 July 2019. All the more so when the evidence indicated that between 30-50 students actively participated in the long jump trials on that day and that there had been numerous previous jumps leading up to Addison’s fateful jump. It is plain that sand must have been displaced to some extent by previous jumpers. Whether that displacement was then remedied by raking depended upon whether or not the affected areas were raked after every jump. As noted above, the unchallenged finding is that raking occurred only after every two or three jumps.

64. I will now explain why I consider that the primary judge erred in attaching the weight that he did to the teachers’ opinion concerning the adequacy of the level of sand and the significance of raking.

The teachers’ opinion concerning adequacy of sand

65. Addison challenges the primary judge’s finding that Ms Remenyi and Ms Nero formed the opinion that there was adequate sand in the pit on the basis that the finding was not supported by, or available on, the evidence. He submits that the teachers’ evidence “was replete with reconstruction” and that Ms Remenyi consistently qualified her responses with “would have” or “believe that”. He also contends that the teachers’ evidence falls to be assessed in circumstances where they were defending the propriety of their own conduct (citing Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [165] and Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 at [100] per Davies J).

66. The State argues that the issue of the amount of sand in the pit was not put to the teachers during cross-examination, but submits that “the effect of their evidence, and the contemporaneous record, was that on their assessment there was sufficient level of sand to permit the activity”.

67. Although, as noted above, the primary judge described the teachers’ evidence as “vague”, he proceeded to attach a good deal of weight to what he found to be their evidence that they formed an opinion at the relevant time that there was sufficient sand in the pit. In my respectful view, the weight to be given to their evidence had to be affected by the fact that they were reflecting upon events which occurred almost five years earlier and in circumstances where they said nothing remarkable happened on that day which might assist their recollections. Ms Remenyi frankly conceded that she had no specific recollection at all whether a student or a teacher or both were attending to the raking of the sand on the day. She added that “we might have had a student helping us but we would have raked it first”. She explained the reference to “first” as meaning “Before any student started jumping”. She then qualified that response when she was asked, to the best of her recollection, how often the raking occurred. She said that that depended “on how the student landed and whether we needed to rake the sand”. Later, Ms Remenyi confirmed that the student carrying out the raking did not necessarily rake after each jump. Ms Remenyi also said that she did not have any specific recollection of any of Addison’s jumps on that day, nor did she recall whether he complained to her about hurting himself.

68. Ms Nero said that she did not have a clear recollection of what occurred on the day. This is evident from both her oral evidence in chief and in cross-examination, where many of her answers were prefaced by words such as “I think” or simply involved her saying that she could not remember. The word “would” featured in many of her answers, which strongly suggests reconstruction and is unsurprising given the passage of time. For example, in response to a question whether she recalled how often the pit was raked Ms Nero said:

We would do it in between each one, because how would you tell what the student jumped if they didn't - it wasn't flat?

69. For all these reasons, I accept Addison’s submission that the primary judge gave excessive and unreasonable weight to the teachers’ evidence concerning the depth of the sand where Addison landed.

70. Moreover, and perhaps more significantly, there is no evidence to support the primary judge’s finding at PJ[29] that both teachers held a “conclusionary opinion” that the depth of sand was adequate. Indeed, although Ms Remenyi gave evidence that there was sand in the pit at the beginning of the trials, she did not give any evidence, vague or otherwise, to support the primary judge’s finding at PJ[24] that “she considered on the day that there was enough sand in the pit for it (sic) be safe for use by primary school children”.

71. These errors are material. They formed part of the primary judge’s reasons for concluding that it had not been demonstrated that the precautions were inadequate.

The amount of sand which ought to have been in the pit

72. Addison submits that the primary judge erred in not accepting Mr Williams’ evidence, including that the IAAF requires at least 30 cm of sand, a figure which was also mentioned in the Guidelines published by the NSW Department of Education to which Mr Williams also made reference. He also submits that the primary judge erred in finding that the international standard was satisfied in any case, because that finding was tainted by the primary judge’s rejection of Addison’s evidence that the sand was approximately 10 cm below the top of the pit.

73. The State submits that the primary judge correctly rejected Mr Williams’ evidence where no explanation was given to justify the minimum standard of 30 cm and where his evidence was otherwise speculative.

74. I have explained above why I do not accept that the primary judge erred in not acting upon Addison’s evidence that there was approximately a 10 cm gap between the level of the sand and the top of the pit. The critical issue, however, is what level of sand was required in the area where Addison landed. The primary judge found that the level was either 20 cm or 30 cm depending on whether Addison’s estimate was relied upon. But those alternative findings made no allowance for the effectiveness of raking after sand in the landing area was displaced by earlier jumps. The difficulty with the primary judge’s analysis and findings is that they fail to bring to account the evidence that raking only occurred after every two or three jumps. This left open the strong possibility that the sand had not been raked immediately before Addison took his fateful jump. As will shortly emerge, the failure to rake and level the sand in the landing pit after every jump was contrary to safety information published by Little Athletics Australia (see at [79] below).

Raking of the sand

75. Addison submits the primary judge ought to have found that inadequate precautions were taken to ensure the sand was properly raked. He points to his evidence that, when he tried out for Little Athletics, the sand was raked in between every jump to ensure “it was even for the next boy who jumped” and that the sand in the long jump pit on the day of the incident “wasn’t raked properly”.

76. The State argues that the issue of raking is irrelevant in circumstances where Addison failed to establish the relevant precautions which ought to have been taken. It submits that there was, in any case, no evidence that would have allowed the primary judge to conclude that the level of raking was so inadequate that it resulted in a failure to take reasonable precautions.

77. As noted above, the primary judge found that the sand was raked after every second or third jump. His Honour failed to address the following evidence which was relevant to that issue. First, Addison confirmed in cross-examination that he “actively observed” that there was insufficient inspection of the pit after each jump. He accepted, however, that he did not know whether the sand had been raked immediately before he took the jump which resulted in his injuries.

78. Secondly, in his expert report, Mr Williams referred to Guidelines published by the NSW Department of Education which contained a specific section relating to the long and triple jump, which stated (emphasis added):

For long/triple jump activities the following safety strategies must be employed:

● Rake landing pits before any jumping takes place …

…

● Rake pit after each jump to ensure a level landing surface.

…

● Ensure the depth of sand is appropriate for competition in all age groups and that the depth of the sand is consistent in all areas of the pit.

…

79. Mr O’Neill, who together with Mr Charlton appeared for the State, pointed out that the Guidelines to which Mr Williams referred were not in evidence and that those Guidelines were current at the time he wrote his report but did not apply when the injury occurred. In those circumstances, I attach no weight to those Guidelines. But that is not the end of the matter, because Mr Williams also referred at [73] of his report to safety information on the long jump published by Little Athletics Australia, which included a statement to “Rake and level the landing pit after each jump”. When this matter was raised by Justice McHugh in the course of the hearing, Mr O’Neill acknowledged that Mr Williams had cited Little Athletics’ safety information in his report and said that he would come back to it. He never did.

80. The information or standard published by Little Athletics was also confirmed by Addison’s oral evidence below where he said that, when he was competing in Little Athletics’ long jumping events, after every jump a student or a parent who was raking the landing pit would make sure that it was even or level before the next athlete jumped.

Permissible inferences regarding the adequacy of precautions

81. Addison submits that the primary judge erred in failing to draw an inference that the sand in the landing area was not reasonably adequate to protect against the risk of injury from long jump. He contends that such an inference ought to have been drawn in circumstances where the primary judge accepted his evidence that it was only on his last jump that he felt his feet hit a hard surface and he experienced immediate pain when he fell backwards.

82. The State submits that there was no error in the primary judge’s reasoning (at PJ[41]) that the effect of Dr Bodel’s evidence was that it was not possible to draw an inference from the fact of injury that inadequate precautions had been taken in relation to the sand in the pit.

83. The State did not contend that this Court was not in a position to determine the facts on the material before it. That position was correctly adopted having regard to the nature of a hearing on appeal under s 75A of the Supreme Court Act 1970 (NSW) and noting that the primary judge’s findings were not based on any significant adverse credit assessments. The primary judge described Addison as an honest witness but added that the weight to be given to some of his evidence had to take into account his age and the passage of time between the date of the incident and the trial.

84. Importantly, however, the primary judge accepted Addison’s evidence that, on or about his fifth or sixth jump, he landed on his feet in the sand, immediately felt that his feet hit a hard surface below the sand, fell backwards onto his bottom or back or both and immediately felt significant pain in his back (see PJ[27]-[28]). In my view, Addison’s evidence strongly suggests that his feet had actually hit the bottom of the pit. It is notable that he was not challenged in cross-examination on his description of the actual incident. It is no answer to suggest that little or no weight should be given to Addison’s evidence that his feet had hit a hard surface because this was merely his “perception”, as submitted by counsel for the State. As McHugh JA pointed out in an exchange with counsel at AT44.10:

A witness can only give evidence of what they perceive through their five senses or their state of mind if it’s relevant. That’s the way in which one would give evidence that one’s feet hit the hard surface.

85. In my view, the primary judge’s erroneous finding concerning “Softfall” played a significant role in his Honour’s ultimate conclusion that Addison had failed to demonstrate that the precautions implemented by the School were inadequate.

Application of s 5B(2) of the CLA

86. As to the proper application of s 5B(2) of the CLA, Addison submits that the primary judge’s finding that there was a remote probability of a not insignificant injury being suffered if the sand was not at least 30 cm deep was not supported by the medical evidence. He submits that the burden of ensuring that the depth of sand was at least 30 cm, and of raking the sand between every jump, is low. He emphasises that these precautions are implemented by Little Athletics. He also submits that the primary judge impermissibly diminished the risk of injury due to the seriousness of the injury.

87. The State’s written submissions did not respond to these contentions. Addison’s contentions should be accepted, with particular reference to the relatively low burden of ensuring that the depth of the sand in the likely landing area was level before every jump. This required the sand to be level above an adequate depth of sand after every jump to avoid a participant’s feet hitting a hard surface at the bottom of the jumping pit.

Res ipsa loquitur

88. As to the issue of res ipsa loquitur, Addison submits that the primary judge should have considered it sufficient for the application of that principle, and for an inference of negligence, that Addison “made a long jump attempt and landed in a sand pit and experienced severe pain in his back after experiencing a hard impact”. Various authorities are referred to, including Scott v London St Katherine Docks Co (1865) 159 ER 685; Mummery v Irvings Pty Limited (1956) 96 CLR 99 at 114; [1956] HCA 45 and GIO (NSW) v Fredrichberg (1968) 118 CLR 403 at 413.

89. The State submits that the primary judge was right to find that the principles of res ipsa loquitur had no application.

90. I do not accept Addison’s submissions on this issue. Addison’s written submissions below raised the principle of res ipsa loquitur and reference was made to the case law described above. As noted above, the primary judge explained at PJ[45]-[48] why he did not consider that the principle had any application here. Some of that reasoning is, in my respectful view, flawed (particularly in respect of the primary judge’s finding that Softfall covered the bottom of the pit and also his assessment of the teachers’ evidence).

88. There are other reasons why I consider that the primary judge was correct to conclude that the principle did not apply in the circumstances here. In particular, the principle had no application simply because this was not a case where the cause of Addison’s harm was unknown or stemmed from an unspecified source (see Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 at [31] per Gleeson CJ and McHugh J). In this case, there was evidence of the cause of the accident, namely Addison’s feet hitting a hard surface which resulted in him falling backwards. As Gleeson CJ and McHugh J explained in Schellenberg at [32], once the cause of the external event is identified, “the question becomes whether the plaintiff has proved that that cause was the product of negligence”. In this case, for reasons explained elsewhere, I am satisfied that Addison discharged his burden of proving that the School had breached its duty of care to him because of its failure to implement reasonable precautions against the risk of harm.

89. It is neither necessary nor appropriate to call in aid the principle of res ipsa loquitur in reaching that conclusion.

Conclusion on liability

93. For the reasons set out above, I consider that the primary judge erred in not concluding that Addison had established on the balance of probabilities that the School did not take reasonable precautions so as to avoid the risk of harm as identified by the primary judge. In particular, the School failed to ensure that there was adequate sand to act as a cushion in the area of the jumping pit where Addison’s feet landed. Moreover, the supervision by two teachers of a student who raked the sand to ensure a level depth of sand was inadequate when the raking occurred only after every two or three jumps.

94. As the Court emphasised in Kondrajian, there are undoubted risks in school sports, but they form part of the curriculum in many primary schools and the community rightly recognises that such activities are beneficial for young children when properly supervised. Each case necessarily turns on its own particular facts and circumstances, but I am comfortably satisfied that there was a breach of duty on the part of the School in failing to take reasonable precautions to minimise the risk of injury from long jumping, as identified above. In contrast with the circumstances in Kondrajian and the cases referred to there at [61] involving injuries sustained by students participating in school sporting activities, there was a breach of duty here because of the School’s failure to take reasonable precautions which could have prevented Addison’s injuries. Those precautions were not onerous.

Damages

95. Appeal grounds 6 to 9 challenge the primary judge’s findings concerning future economic loss. They are as follows:

6 In determining the value of the appellant’s claim for future economic loss, the Trial Judge erred in finding that that (sic) appellant would not suffer any diminution in earning capacity” [J75] (the determination).

7 The Trial Judge failed to give adequate reasons for the determination.

8 The determination was against the weight of the evidence and, in particular, is inconsistent with his acceptance of the expert medical evidence concerning the appellants injuries at J[67] and J[72].

9 The Trial Judge ought to have found that the severity of the appellant’s injuries materially contributed to a diminution in the appellant’s earning capacity, such diminution having a value in excess of $100,000.

96. Addison’s essential contention is that the primary judge erred in failing to award damages in accordance with s 13 of the CLA as a “buffer” or “cushion” against future economic loss. Some of the relevant principles concerning an award of damages by way of a “buffer” against future economic loss were summarised by McColl JA (with whom Mason P and Beazley JA agreed) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Aust Torts Reports 81-949 at [84] (citations omitted and noting that the principles require some adjustment in the light of Addison’s age and limited employment record):

As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: … .

97. Addison contends that damages for future economic loss should have been awarded in accordance with the principles identified by Heydon JA in State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [87] (citations omitted):

[W]here earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non- recovery of damages. … The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. …

98. As this passage demonstrates, it may not be appropriate to award buffer damages if the evidence, while demonstrating a reduced capacity to earn, does not demonstrate that this reduced capacity is likely to produce any financial loss (see also Fegan v Lane Cove House Pty Ltd [2007] NSWCA 88 at [28] per Bell J, with whom Ipp JA agreed).

99. Zreika v New South Wales [2009] NSWCA 99 is an example of a case where it was held to be appropriate to award buffer damages. Ipp JA (with whom Beazley and Macfarlan JJA agreed) reasoned at [41]:

… Unlike the factual situation in Fegan v Lane Cove House Pty Ltd, this case is in the same category as New South Wales v Moss. As I have pointed out, the appellant’s earning capacity has unquestionably been reduced. Should the contingency arise that the appellant cannot obtain employment in the auto glazing industry, his loss of capacity to earn is likely to be productive of financial loss. The extent of that loss is difficult to assess. Accordingly, in my view, it would be appropriate in this case to award the appellant a buffer.

100. I consider that this is also an appropriate case to award damages by way of a buffer or cushion and the primary judge erred in not doing so. I am satisfied, on the balance of probabilities, that Addison suffered an injury that was likely to cause him future economic loss.

101. While there are obvious difficulties in assessing future economic loss in the case of a youth such as Addison, it is well settled that the Court should make some attempt to assess an amount for future economic loss (see, for example, Younie v Martini [1995] NSWCA 532 at [37] and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [105]).

102. Dr Bodel’s evidence provides a sufficient basis for finding that Addison’s injuries were likely to affect his future income. Dr Bodel described as “inappropriate” Addison undertaking “unrestricted labour oriented activities”. He said that Addison had some restriction on his capacity to work in the future and would not be able to engage in unrestricted heavy labouring oriented work. Dr Bodel noted that, as at 27 August 2024, Addison continued to experience pain in the lower part of his back, suffered periodic muscle spasms and a dull ache which was aggravated by activity. Dr Bodel said in his oral evidence that he considered that Addison’s pathology had deteriorated. In re-examination, Dr Bodel confirmed that there was no doubt that Addison “has a significant permanent pathology”. Dr Bodel also opined that Addison would “struggle with even moderate menial tasks and with prolonged study programs”.

103. It is notable that the State’s expert, Dr Machart, was not instructed to express an opinion regarding Addison’s future earning capacity. Rather, he was asked to comment on Dr Bodel’s findings and opinions. Dr Machart said that he agreed with Dr Bodel that “labouring type work may not be the best choice in the future”. Mr O’Neill properly acknowledged in oral address that not much could be drawn from Dr Machart’s report when regard is had to the terms of his instructions.

104. In his oral evidence below, Addison was asked what jobs he had in mind after he left school. He said that he had a few ideas, including possibly going into finance or an IT job like his mother. He then added that he appreciated that those jobs would involve a lot of sitting and not moving and that if he was to work in finance and was sitting down for most of the day, he would “have a lot of pain and it’s going to make the job quite hard”. Nevertheless, he said that he thought he could still do that type of work. He also said that he would like to go to university and obtain a business or finance degree or something like that.

105. It is also notable that Addison raised the possibility of him joining the military and undertaking a degree at somewhere like Duntroon. He confirmed that he was currently in high school cadets but that he had been unable to participate in the camp which may have led to his promotion as a cadet because he was having a very bad back spasm that week and would not have been able to carry heavy bags on his back.

106. Finally, although of less significance, in his oral evidence in chief Addison said that, prior to the incident, he was paid as a basketball referee in the amount of $16 a game. The context in which this evidence was given suggests that he had to stop refereeing after the accident. His inability to coach basketball was one of the particulars of loss of earning capacity and future economic loss in the filed document styled “statement of particulars personal injury proceedings”.

107. Having regard to these matters, together with the likelihood of Addison needing to work for at least four decades or so, I consider that this is an appropriate case to award a buffer in the amount of $250,000 (which, in fact, was the figure advanced by Addison below).

108. Appeal grounds 10 and 11 challenge the primary judge’s assessment that, for the purposes of non-economic loss, Addison’s loss was estimated at 20% of a worst case, referring to s 16 of the CLA, which provides as follows (excluding the table):

16 Determination of damages for non-economic loss

(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

(2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.

(3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table: …

(4) An amount determined in accordance with subsection (3) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up).

109. Addison relies on the following statement of principle by Leeming JA in Hall v State of New South Wales [2014] NSWCA 154 concerning the standard of appellate review in relation to s 16 (citations omitted):

[31] It is true that some authorities in this court refer to s 16 as involving an exercise of discretion: see for example Berkeley at [79] and Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [32]. However, those authorities do not go so far as the parties to the present appeal ventured, which was to accept that House v R error needed to be established. What those authorities do clearly establish is that the determination is “neither scientific nor normative” and is “not readily susceptible to appellate review”: … . That is plainly so. The key to the meaning of the description of the task as “discretionary” may be seen perhaps most clearly in the often cited proposition in Dell v Dalton (1991) 23 NSWLR 528 at 533 that the assessment involves matters of “opinion, impression, speculation, and estimation”. I respectfully agree with McDougall J’s observation that “to say that a determination of non-economic loss involves more art than science might be to overstate the degree of logic and precision with which such an assessment is performed”: … . Nevertheless, while fully acknowledging its inevitable imprecision, the task remains conceptually distinct from the exercise of a discretionary power, and its review on appeal is subject to different principles.

[32] The primary judge was not called to exercise a discretionary power, but instead had to make a finding of fact, namely, the severity of non-economic loss by reference to the proportion of a most extreme case. Ordinary principles of appellate review apply to that finding. That said, the intrinsically imprecise nature of the statutory task will have the effect that in many if not most cases, nothing will turn upon the different formulation of the applicable principles of appellate review. In this respect, the position is as stated by Spigelman CJ in Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 at [40]:

Where, as here, the first statutory step is clearly a finding of fact, albeit one involving a broadly based value judgment, it may be that the Court should invoke the principles reflected in Warren v Coombes (1979) 142 CLR 531 rather than in House v R. Nevertheless, in most cases it is unlikely that the different tests will lead to different results.

110. There may be some tension between those statements in Hall and more recent authority in White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [61]ff per Gleeson JA and at [96] per White JA. Their Honours considered that the “deferential standard” as stated in House v R (1936) 55 CLR 499; [1936] HCA 40 was the appropriate standard in reviewing an assessment of non-economic loss under s 16 and not the standard in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9. Macfarlan JA dissented on this point (at [26]). It is unnecessary to address and resolve any such tension in circumstances where the State did not question Addison’s reliance on Hall.

111. Apart from pointing to his relatively young age and the nature and permanence of his injury, Addison’s counsel did not substantially develop the complaint that the primary judge’s assessment of 20% of a worst case was manifestly inadequate.

112. In AEA Constructions Pty Ltd v Wharekawa [2019] NSWCA 176 at [8], Basten JA observed that there were three matters of principle in play in making an assessment of non-economic loss under s 16. Those principles were affirmed by Brereton JA (McCallum and Simpson JJA agreeing) in Dhupar v Lee (2022) 107 NSWLR 492; [2022] NSWCA 15 at [185] (footnotes omitted):

(1) it is necessary to have in mind the injury or harm for which damages are to be assessed — relevantly, pain and suffering and loss of amenities of life. There is a significant subjective element in the assessment of a plaintiff’s suffering for this purpose, from which it follows that an appellate court should usually give weight to the assessment of the severity in the particular case by the trial judge;

(2) consistently with (1), the appellate court will generally be constrained in its approach to a challenge based on an evaluative judgment made by a trial judge which involves questions of fact and degree and matters of opinion, impression, speculation and estimation calling for the exercise of common-sense and judgment, so that, absent demonstrable error of fact or law, the court will not interfere with a proportion which was reasonably open on the material before the trial judge; that is to say, the court will not interfere unless “a particular award of damages lies beyond the limits of what a sound discretionary judgment could reasonably adopt”; and

(3) in this exercise, the range of reasonable opinion is to be assessed by reference to the task of evaluating the proportion of a most extreme case, and not by its financial consequences.

113. The notion of “a most extreme case” against which the severity of a plaintiff’s non-economic loss is to be assessed as a proportion is not a highly defined concept (Doubleday v Kelly [2005] NSWCA 151 at [35] per Bryson JA (Young CJ in Eq and Hunt AJA agreeing)). However, some guidance is provided by the decision of Shephard AJA in Kurrie v Azouri (1998) 28 MVR 406 at 413. His Honour there observed:

The expression “a most extreme case” requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by “a most extreme case”. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia where there are complications which produce consequences having effects which exacerbate the already parlous condition of the plaintiff, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others. But even some cases falling within the categories I have instanced would not necessarily justify the description of a most extreme case. There would no doubt be many serious cases which would fall below the maximum although they might yield 80% or 90% of the amount to be awarded in respect of a most extreme case.

114. These observations were made in relation to a broadly equivalent provision in the Motor Accidents Act 1988 (NSW) but have been cited with approval in relation to s 16 of the CLA. In Coleman v Barrat [2004] NSWCA 27, for example, Gzell J (Sheller JA agreeing) approved Shephard AJA’s observations and went on to describe the task as follows (at [66]):

In the present case, that task may be undertaken by considering the non-economic loss Ms Barrat might have suffered had she been rendered a quadriplegic by her fall. The loss of amenities of life in such a case, in particular, would far outweigh her actual impairment, serious though it be. She is clearly far better off than a person who sustained a high level amputation of an arm. Being right handed, she is far better off than she would have been had she fallen on her right hand.

115. As noted above, the primary judge assessed Addison’s non-economic loss as 20% of a most extreme case. While properly acknowledging that the Court should not be distracted by the fact that the figure of 20% amounted to the sum of $23,000 under the relevant table, senior counsel for Addison submitted that 20% was “grossly inadequate” and that a figure of 33% was more appropriate. The contention was not otherwise developed.

116. Having regard to the legal principles outlined in the cases discussed above, I consider that the primary judge’s assessment of 20% of a worst case was in the range of reasonable opinion, noting that the primary judge made clear that his assessment made allowance for pain and suffering. I am not persuaded that his Honour’s assessment of non-economic loss should be disturbed.

117. Accordingly, there should be an award of damages in the amount of $276,500 plus interest. This amount is made up of $250,000 for future economic loss and $26,500 for non-economic loss. The amount of $26,500 for non-economic loss is calculated taking into account the rounding required by s 16(4) of the CLA and on the basis of the “maximum amount” figure in force from 1 October 2024, noting that the trial ended on 2 October 2024 and that this Court has not assessed non-economic loss afresh (see Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400 at [182]-[183]).

Notice of contention

118. Under s 5D(1)(a) of the CLA, a determination that negligence caused a particular harm is contingent on a finding that negligence was “a necessary condition of the occurrence of the harm”. Even if the School was negligent in failing to ensure that there was an adequate amount of sand in the long jump landing area, the State contends that any such negligence was not a necessary condition of the harm.

119. The law concerning s 5D(1)(a) is well-established. The section “involves nothing more or less than the application of a ‘but for’ test of causation” (Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [16]). In cases like the present, where the alleged negligence involves an omission to do something, it “requires consideration of the probable course of events had the omission not occurred” (Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5 at [32]). Here, the relevant question is whether Addison proved that it is more probable than not that his injuries would not have occurred but for the School’s failure to ensure an adequate amount of sand in the long jump landing area.

120. In support of its contention that causation has not been made out, the State relies on the following evidence of Dr Bodel during cross-examination:

Q. It doesn't need to be a hard surface that he lands on though, any surface with enough force is going to be the thing that causes that; you would agree?

A. Yes. Force is not actually the most important thing about how the disc injury occurs, it can be as simple as coughing or sneezing or bending down to pick something up, straining at the toilet. Anything like that could be enough to do it because the structure of the annulus fibrosus is not a linear thing, it has a crisscrossing sort of pattern, and there are several parts of the discretion, particularly in the sort of ten to 12 sort of area of the disc if you look at it, where it's relatively weak. And an increase of intra-abdominal pressure of any sort causes a pressure to go outwards through that, and that's what could've been enough to cause the disc injury.

Q. For example, it can just be running and jumping around in the playground, that would be enough?

A. Any of these things can lead to it. But as we said at the beginning, it's uncommon, very uncommon in the adolescent or the young child.

121. The State contends that the effect of this evidence is that Addison’s injuries were caused by intra-abdominal pressure and that the force or hardness of his landing in the pit was not the crucial variable. Because standards concerning the amount and quality of sand in the long jump pit are precautions aimed at alleviating particularly heavy landings, any negligence in failing to ensure there was an adequate amount of sand in the pit is therefore said not to have been necessary to the occurrence of Addison’s injuries. This is also said to be confirmed by, or consistent with, the following observations at PJ[72]:

… Whilst the legal question of causation here is difficult, and I do accept that the Plaintiff may have suffered the same injury whatever the Defendant did, on balance, I think if there was insufficient sand in the pit, that probably materially contributed to this injury.

122. I do not accept the State’s contentions. While it is true that Dr Bodel considered that Addison’s injuries were caused by increased intra-abdominal pressure and that his evidence was that increased intra-abdominal pressure could have any number of causes, including relatively mundane events like sneezing or bending over to pick something up, the crucial issue is what in fact caused the increase in intra-abdominal pressure which was responsible for Addison’s actual injury. In cross-examination, Dr Bodel was quite clear that he considered the relevant cause to be Addison’s hard landing:

… it’s probable that the disc was damaged in the very sudden and fairly traumatic event of landing unexpectedly on a hard concrete surface which, even in the depths of a sandpit, that is a significant event, …

123. Dr Bodel’s reference in that answer to “concrete” appears to reflect his instructions and does not constitute an admissible fact. This does not diminish the weight of his evidence, the focus of which is on the uncontested fact that Addison’s feet contacted a hard surface.

124. The relevant question relating to s 5D(1)(a) of the CLA is whether Addison would have experienced a similarly hard landing had there been an adequate amount of properly raked sand in the long jump landing area. Addison’s evidence, which was accepted by the primary judge, was that his feet hit a hard surface, which he had not experienced in any of his previous jumps. If there had been adequate sand in the landing area, it is more probable than not that Addison’s feet would not have hit a hard surface. Failure to ensure adequate sand was therefore, on the balance of probabilities, a necessary condition of Addison experiencing the hard landing he did.

125. It is possible that Addison may still have suffered the same injuries had there been an adequate amount of sand in his landing area (just as it is possible, on Dr Bodel’s evidence, that he could have suffered the same injury by sneezing). However, it is “no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open” (Strong v Woolworths at [34], citing Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 at 430 per Hayne JA). In circumstances where the evidence was that Addison’s injury was extremely rare for a boy his age, and where he had completed a number of jumps without any issue, the possibility that his injury could have been suffered but for negligence is not sufficient to displace the inference that it was caused by negligence.

126. For these reasons, I would dismiss the notice of contention.

Conclusion

127. For all these reasons, I propose that the appeal be allowed and the notice of contention be refused. I would set aside the orders below dated 4 and 17 October 2024 and in lieu thereof order that:

1. Judgment for the plaintiff in the amount of $276,500 plus interest.

2. The defendant pay the plaintiff’s costs.

128. There is no evident reason why costs of the appeal should not follow the event.

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Decision last updated: 06 June 2025