Truffet v the State of Queensland

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane

No 2723 of 1987

Before the Hon Justice White

[Truffet v. The State of Queensland]

BETWEEN:

BARBARA ELIZABETH TRUFFET
Plaintiff

AND:

STATE OF QUEENSLAND
Defendant
REASONS FOR JUDGMENT - WHITE J

Judgment delivered 11/06/1997

CATCHWORDS: TEACHER - injured by young pupils - liability - quantum.

Counsel:Mr Taylor for plaintiff
Mr Samios for defendant

Solicitors:Peter Wallace & Co for plaintiff
Crown Solicitor for defendant

Hearing Dates: 11, 12 13 March 1996

IN THE SUPREME COURT

OF QUEENSLAND

No 2723 of 1987

[Truffet v. The State of Queensland]

BETWEEN:

BARBARA ELIZABETH TRUFFET
Plaintiff

AND:

STATE OF QUEENSLAND
Defendant
REASONS FOR JUDGMENT - WHITE J

Judgment delivered 11/06/1997

The plaintiff, a 54 year old divorced woman and former teacher, has sued the defendant for damages for personal injuries sustained by her in the course of her employment as a special needs teacher at the St George Primary School in 1984. Both liability and quantum are in issue.
In brief, the plaintiff maintains that by requiring her to teach together certain Grade 1 children who were known to be unruly, aggressive, violent and disobedient when together, the defendant breached the duty of care which it owed to her. The plaintiff alleges that she sustained an injury on 16 July 1984 when she was kicked in the abdomen by one Norman Petersen when she tried to separate him from fighting another boy, Robbie Thurston, with whom he was on terms of animosity. Also on that day Norman Petersen attempted to attack her with a pair of scissors and in trying to disarm him she suffered neck and back injuries. A further incident occurred on about 11 December 1984 when the plaintiff was teaching the three Grade 3 children who had been assigned to her and who also fought with each other. She sustained an injury to her upper arm when she intervened in a fight between two of the boys. It is a further complaint of the plaintiff that she ought not to have been required to teach these children, who were known to display aggressive conduct to each other, in an isolated classroom.
The plaintiff ceased teaching at St George on 14 December 1984. Thereafter she was assigned to a special school in Toowoomba but alleges that because of the consequences of the injuries which she had received at St George she was unable adequately to carry out her responsibilities and, in any event, had been assigned to do work which was inappropriate to her qualifications. She thereafter suffered a nervous breakdown allegedly brought about wholly or in part by the conduct of the children at St George. The plaintiff has had virtually no remunerative employment since mid-1985 which state of affairs she attributes to injuries sustained in the attacks upon her and their sequelae.

Background

The plaintiff was born in England in 1942. She attended the College of Education, Bracknell, associated with the University of Wales for three years and attained teaching qualifications in English history, dramatic art, needlework, remedial maths and remedial English to teach to junior high school level. She initially taught children with learning difficulties in a secondary school. She married in 1965 and went to Germany where her husband was posted with the Army and where she taught in military schools. On return to England she taught in a primary school. The plaintiff's first child lived only a few days following which she suffered a period of depression for which she was treated with anti-depressants. She suffered post-natal depression following the birth of her daughter (now aged about 26 years) and her son (a year younger). In due course the plaintiff left the classroom situation and with her husband became a house parent to a number of children whom she and her husband described in evidence as anti-social and unfit to be fostered but who, after a period of time with the Truffets, were able to be fostered into normal families.
Their son was dyslectic. The plaintiff was aware of special programs devised for such children at the Schonell Education Centre in Queensland which were not available in England. She gave this as the dominant reason for deciding to immigrate to Australia. Some of her husband's family were already here. In 1981 the Truffet family came to Sydney where they remained for a short period before moving to Queensland. The plaintiff applied to the Queensland Department of Education for employment in the field of special education. In her application form dated June 1981 she nominated remedial teaching as her area of specialisation in her training course and as her area of preference. She said that she did so on the advice of Mr Hilton Smekel, head of the Toowoomba Special Education Unit. Mr Smekel died in 1990 and was thus unable to give evidence in this trial. It appears that he indicated to the plaintiff that it was in the area of special education that she was most likely to be successful in obtaining employment with the Education Department. When filling out the application form the plaintiff added as additional information
"... Whilst working as a house mother I lived with 9 maladjusted children. These children were unfit for fostering - anti-social behaviour was considered a normal pattern by them. They also had learning difficulties because of their disturbed school and home background.

During the time we lived together I improved their schooling and behaviour so that they were able to attend a school normally, attaining their correct standards (grades) and were able finally to be fostered within a normal family environment.

When all the children were leading normal lives I left the home and continued to look after my own children. ..."

In her evidence the plaintiff gave some further detail about the children for whom she and her husband cared prior to them being fostered. She said two boys were committed to her care through the courts because they were arsonists, one aged 5 "was so emotionally disturbed that he would go around and do anything to people just to get attention. He would often hit some of the other - the staff or whoever came to hand, and he tried to hit somebody with a milk bottle one day" (t/s 33). She referred to two teenage girls who were on the streets soliciting, a girl who had been raped by her uncle and was pregnant and a boy who was a thief. The plaintiff suggested that they were "normal people in a normal family situation" who were pushing against the authority figure and after being in her care for a period of three years they were able to be fostered. She said that there was nothing malicious or vicious in the fighting that took place between them unlike the "nastiness and viciousness in the attack at St George". The plaintiff may have discussed in greater detail the children whom she looked after in England with Mr Smekel but in any event her application indicated that she was a person experienced and successful in dealing with seriously socially maladjusted children.
           The plaintiff and her husband managed a home for the Uniting Church in Toowoomba for a year or so, followed by a period as a primary school teacher at a private school after which her teaching qualifications were accepted by the Education Department. Eventually she was contacted by Mr Smekel who mentioned a position which might become available at the St George Primary School. The plaintiff was given a trial at the Toowoomba West Special School for about six weeks as a voluntary aide and created a very good impression (this is noted on her application form by an officer of the Education Department). Her appointment to St George is dated from 24 April 1984 although it is not clear when she actually took up her position as the classroom to be renovated for her use was not then ready. The plaintiff spent some time in Toowoomba looking at methods for teaching Aboriginal children and reading case histories of children it was expected that she would be teaching.
           Going to St George entailed splitting the family as Mr Truffet was unable to get work there. The plaintiff and the two children went to St George. The family's home in Toowoomba was rented out and Mr Truffet remained at his job in Toowoomba, apparently residing in a small flat associated with his work. The plaintiff said she believed that she would be taking a group of about 15 Grade 1 failures at St George. She anticipated teaching them Grades 1 and 2 to bring them up to Grade 3 standard so that they could maintain their age group and rejoin their peers for Grade 3. The plaintiff denied that she had any understanding that she would be dealing with children with behavioural problems. She visited the school prior to joining it and discussed what she would be doing with the headmaster, Mr Brian Engler. At this point I should mention that I did not regard the plaintiff as a very reliable historian. These events occurred twelve years prior to the trial. From mid-1985 the plaintiff's physical and mental health deteriorated considerably. An account of the material events written by her about one week after they occurred is different in important respects from her evidence given at trial. The plaintiff tended to use, in my view, overly dramatic language to describe events in the course of giving her evidence. She has come to attribute most if not all of her misfortunes to what occurred at the St George Primary School even where the medical evidence clearly demonstrates that in some instances it could not be so. I shall return to her evidence in more detail, but I have preferred to rely upon the evidence of Mr Engler and Mrs Eddy, who taught with the plaintiff at St George, even though they both readily qualified their evidence by reference to the long period of time which had passed between giving evidence and when these events occurred. I have also preferred the report prepared by the plaintiff a few days after the events which was to accompany her worker's compensation form, to her recollection now. She has repeated her story to numerous people over more than a decade since these events occurred and in the retelling she has come to believe an exaggerated version of what occurred. For example, she told Dr M Nothling, psychiatrist, that "every day out there she was subject to physical attacks by students," (ex. 25, p.3), which the evidence in no way supports. Her life has become almost unendurable at times and it is not surprising that she has tended to view these events, which were, no doubt, pivotal in her new life in this country in a way which absolves her from any responsibility for what has happened since then. I have had some assistance from other contemporaneous documents although little has been retained relating to the school after such a long period.
           It is necessary to consider the expectations of the role that the plaintiff would perform at the St George school in 1984, how she presented her qualifications and, to a lesser extent, her own expectations, to ascertain the ambit of the duty owed to her. Although she said that she would not have accepted the position had she known that the children she would have in her charge had behavioural problems as opposed to learning difficulties simpliciter, there is no claim for breach of contract in that sense, or of misleading or deceptive conduct inducing her to accept the appointment at St George.
           As can best be understood, bearing in mind the lapse of time and the absence of Mr Smekel, it had been proposed that a special education unit be established at St George Primary School but on investigation there were insufficient children with the appropriate criteria to establish such a unit. It was proposed by Mr Smekel that St George be assisted with other pupil difficulties by establishing a special needs class which was to be taught by the plaintiff. Mr Engler recalled that the predominant reason for the establishment of the special class was for behaviour modification and management of children in the lowest classes who were exhibiting inappropriate behaviours in the classroom together with learning difficulties. It was thought that by modifying their behaviour at the commencement of their schooling they would more readily fit within the school's programs in the upper years and so gain from their education. A domestic science building no longer in use which had once been part of the secondary school and separated from the other primary school buildings was prepared for the plaintiff's use.
           The children to participate in the plaintiff's special group were selected with the assistance of Education Department regional officers and the personnel at St George Primary School prior to the plaintiff arriving. The regional office recommended that these children be withdrawn from their regular classes in small groups at certain times of the day and taken to the new dedicated room to be taught by the plaintiff. The selected children fell into three groups - Norman Petersen, Robbie Thurston and a third little boy who was not much in evidence, from Grade 1; about three or four children from Grade 2 about whom no complaint is made by the plaintiff; and Jamie Delaware, Wesley Wilson and Jonathan Wright from Grade 3. Jamie Delaware was considerably older than the other two Grade 3 boys, who were about seven or eight. Norman and Robbie were six year-olds
           The plaintiff arrived at St George, it seems coincidently, at about the same time as officers from the Special Education Unit in Toowoomba. Mrs Pat White-Davidson gave evidence of a visit to the school at about this time. She was a remedial support teaching adviser with the Department of Education who assisted special learning support teachers in the region with programming, professional development and any teaching problems which they may have been experiencing. She recalled meeting with the plaintiff in mid-1984 and discussing with her the principal behavioural management strategies which would be relative to the plaintiff's task. It was not suggested that the plaintiff expressed any concern to her about what was proposed as her role in the school. The school already had on the staff a learning support teacher. Some parents also came into the Grade 1 group to assist with children who were experiencing learning difficulties.
           The renovations to the domestic science room had not been completed when the plaintiff arrived at St George Primary School. As best any of the witnesses could recall the plaintiff spent the first six weeks or so working in the existing classrooms or in a small room made available for her use in the school complex.

The Children

Mrs Jennifer Eddy taught a composite Grade 1 class at St George in 1984 (she was then Ms Simunek) with her teaching partner, Mrs Margaret Poplawski. They had a class of about 42 children (although the numbers varied from witness to witness) which included Norman Petersen and Robbie Thurston. Mrs Eddy, who was still a primary school teacher when she gave evidence, described Norman Petersen as "rather naughty at times, disruptive to the class and sometimes used to get - push especially Robbie around" (t/s 114). She said that this behaviour was "now and again" and that he was never violent towards her. She described Robbie Thurston as "an angry little boy at times" (t/s 115). That seemed to relate principally to having come to school without breakfast. When that occurred the Grade 1 teachers would arrange for him to have breakfast at the tuckshop and he often settled thereafter. Mrs Eddy thought that Norman and Robbie would fight each other in the classroom approximately twice a week. She or Mrs Poplawski would separate them, usually by holding Norman in a bear hug. Generally the other teacher would take charge of the rest of the group at that time. Mrs Eddy agreed that for his age Norman was a strong little boy. She said that he never attacked her or tried to run away from her when she was restraining him. She did not regard him as having learning disabilities in maths but that he had problems in social skills and working in a group. His disruptive behaviour included roaming around the room during classes. She described Jamie Delaware as having behavioural and learning problems. She never saw Wesley Wilson displaying bad behaviour although neither boy was in her 1984 class. I accepted her as a sensible and fair person who was sensitive to the needs of children who had learning and behavioural difficulties. Mr Engler described Norman Petersen's behaviour as "at times inappropriate" (t/s 138) in that he would wander around the classroom, disrupt others and be cheeky. He did not consider him violent but aggressive, unruly and disobedient at times.
The plaintiff described Norman and Robbie as "individually ... controllable, nice little kids [who] worked well with the other persons within that group," but as soon as the two were together alone "they would start lashing out" (t/s 12). The plaintiff said that she "could see trouble" with the children and for this reason asked the headmaster for a phone in her classroom because it was physically separated from the other classrooms. It appears that he agreed to this. She said she told Mr Engler that she had difficulties due to the animosity between the two boys but had worked out a plan whereby she could work with them and increase their tolerance level for each other. Each boy would be withdrawn separately for teaching and then they would have some time together. The plaintiff said that she had reached the stage with Norman and Robbie where they would tolerate each other quite well for about 20 minutes and play "quite happily" (t/s 14). She said that she had achieved a good working relationship with the Grade 2 children but there were still problems inter se with the three Grade 3 boys assigned to her. There was little detailed evidence led about the programme devised for the three Grade 3 boys apart from that set out.

16 July 1984

The kick incident
The plaintiff maintained in her evidence at trial that on the morning of 16 July she was working in the Grade 1 classroom during which time Norman and Robbie had had a fight. She was in the process of settling them down when the headmaster directed her to take the two boys immediately over to her new classroom. She asserted that he interfered in her strategy for calming the boys down and that she would have remained in the Grade 1 classroom for the balance of the period had he not directed her otherwise. She says she complied with his direction and the children ran across the yard to her classroom and after she had opened the door Norman started kicking Robbie "viciously". She described Robbie as being on the floor screaming whilst being kicked by Norman. The plaintiff took hold of Norman's hands
"I had two hands. I had one hand there, one hand there. He was facing me and he jumped from the floor and put his two feet up and caught me right in the pubic area and then over the ovary on the right-hand side." (t/s 16)

This caused the plaintiff considerable pain so she dropped Norman whereupon, she said, he ran around the classroom. She comforted Robbie who by then had stopped crying and gave him some crayons. She found that Norman was by then "reasonably calm". The plaintiff said that she taught them separately for the rest of the period to 10.30 which was for "a fair amount of time". She then dismissed them out to play for morning tea break and reported the assault to the headmaster. She said that he then announced that he was going to cane Norman and sent someone to fetch him. The plaintiff added, as a direct quotation of the headmaster's words, "By the way, when I finish with him, you are to have him back. You are to have the two of them back in that room and you are to take control of the situation" (t/s 16). The plaintiff said that she told the headmaster that she thought it wrong to do so and that normally she had the Grade 2 class after morning tea break but that since he wished it she "took it with good grace", ibid.

The scissors incident
The plaintiff said that the two boys went back to her classroom after morning tea for the next period but that Robbie was very subdued because "he knew he shouldn't be there" (t/s 17), but in the Grade 1 classroom. The plaintiff said she put him in an alcove with some jigsaw puzzles and told him to play quietly and not to come out because he had already been hurt that morning. She said that by this time Norman was rampaging around the room jumping from desk to desk, turning over furniture, ripping things, screaming out, "he was just a ball of anger. He was totally out of control." (ibid). The plaintiff thought it better to let him have the run of the room for a while because she was not willing to tackle him at that stage and thought it was silly to get involved with him while he was so violent. Mrs Eddy had come to the plaintiff's classroom at the start of this class and stood in the doorway. The plaintiff said that Mrs Eddy said she would take Norman back to her classroom after the plaintiff had calmed him down. The plaintiff added
"I didn't have anything that locked in that classroom. I just had a kitchen cupboard fitted at the back with a drawer where I had hidden a pair of scissors. I had a pair of teaching scissors. He found them. I had never gone to the drawer and put them away in front of anybody. I was always very careful when I put them away. I don't know how he found them but he found them. He got hold of them and he made like a knife out of them because he put the blade and the handle together so you had an exposed blade, and the scissors were about that long." (t/s 17)

The length of the scissors was indicated as about 6-8 inches. The plaintiff said that Norman's "attitude had changed". He stopped rampaging around and walked very firmly from the kitchen sink straight towards her. Robbie was behind her. She said that he had the scissors in his hand with the blade sticking out and she did not know whether he was going for her or for Robbie but said to Mrs Eddy that she had to stop him because the situation was dangerous. She said she went towards Norman and got hold of his right arm and right leg, picked him up and tipped him sideways so that the scissors dropped on the floor. The scissors were in his left hand. She said he thrashed and extended the full length of himself "like a convulsion." She said that he pushed her arm right around to the back and "something sort of snapped in my neck" and because she did not wish to get hurt any more she dropped his leg onto the ground. She grabbed his hand with both of her hands and then he ran towards her back:

"He was right behind me and pulling and tugging and really wanted to continued to run. That time it was a big strain on my right knee. It was a strain on my back. It was a strain on everything because I had this kid who was totally berserk really, really trying to pull me. I had two things going through my mind, one, I cannot fall down on the ground because he had already shown he kicks in the stomach and, two, I didn't want to call out. I didn't want to make a fuss. I didn't want to scream or shout or make any exclamation or move. I just wanted to be so solid and so quiet because there was enough tension in that room as it was. So, to anybody who was watching, there was very little going on, but I knew my body - what I was suffering, and I just didn't want to give Norman the benefit of knowing that he had hurt me." (t/s 18)

The plaintiff said that she held Norman's right arm and leg for about half a minute and held him with one arm for a couple of minutes. She then went back to the classroom and continued teaching Robbie while Norman who was by then reasonably calm went back to his classroom with Mrs Eddy. She continued with her teaching duties through the afternoon although she was very sore, went to the GP that evening and told him about the kick to her abdomen. He asked whether she had been able to pass urine and she said she had not. She said she could not remember whether it was that night or 24 hours later but shortly afterwards she returned to the doctor complaining that she had not urinated and so she went to the St George Hospital where a catheter was inserted in her bladder and she remained in Hospital a couple of days. She said she did not return to school for a period because she was in a great deal of pain.
           Mrs Eddy's recollection of the events is not detailed but she said that she could remember the day that Norman went "I suppose, berserk - went silly over in the home economics building and started to push chairs and tables over and started to pull drawers and that out" (t/s 116). She recalled coming over in the morning with a little boy to the economics room. She said that when Norman started turning the tables and chairs over she made Robbie Thurston go into the storeroom close to the doorway and stood in that doorway and that the plaintiff stood near her. She saw Norman open the drawer, take the scissors out and come towards the teacher's desk. She saw the plaintiff walk around the side of desk to the front with her hands by her side. Mrs Eddy recalled that the event with the scissors occurred before morning tea and she took Norman back to her classroom.
           Mr Engler had a vague recollection of the plaintiff making a complaint about being kicked in the stomach by Norman Petersen. He had no recollection of telling her that he was going to cane the boy and he thought it unlikely that he would have done so. He said it was possible that he could have responded by saying "he should be caned" (t/s 155) after learning what had occurred but he said that it was contrary to Education Department regulations to cane a young child and it was not how he normally would have operated to discipline a child. He did not regard corporal punishment as an effective way of changing or modifying behaviour particularly as many of the children were subjected to violence at home.
           A report, apparently written on 24 July 1984 and signed by the plaintiff, more than likely was written at the headmaster's request detailing what occurred. Mr Engler thought that it was to be sent with the worker's compensation claim form as there was insufficient space on the form itself to set out the full details of what had occurred. It is convenient to set out the whole of that report because it casts quite a different complexion on events from the plaintiff's evidence at trial or what she told numbers of medical practitioners. There is no mention that the plaintiff was directed by the headmaster to take the two boys to the home economics room. Indeed it seems from that account that it was a normal session going from the Grade 1 classroom over to her room. She makes no reference to the boys having fought prior to that session commencing. Further, the event with the scissors occurred about 15 minutes after the kick in the abdomen which is consistent with Mrs Eddy's evidence and not after the morning tea break. There is no suggestion that the headmaster required the plaintiff to take the boys back after morning tea break and neither is there any suggestion that the headmaster had offered to cane or had caned the boy prior to the incident with the scissors which the plaintiff sought to infer had caused Norman Petersen's explosion of anger subsequently. The account of the kick and the pulling and tugging during the scissor incident are however consistent with the plaintiff's evidence at trial although according to her report Mrs Eddy carried "the screaming Norman away". It appears from the report that the plaintiff was away from school on the 18 July because of the pain in her stomach, arms and back but that she attended on the 19th. On the 24th, that is, the Tuesday of the following week, the date that the report was written, she returned to her GP whom she said stated that her bladder was damaged and recommended that she go into hospital for treatment. The report from the St George Hospital is consistent with the plaintiff's report in that she was admitted on 25 July with retention of urine and discharged home the following day. The plaintiff's report is as follows

"Monday July 16th

Group 1. I began the session by going to the classroom for the Show and Tell session for Grade 1. Robbie was late. Norman was walking around the room while the remainder of the class was seated. He had something to "Tell". He spoke about his mother and how he would be leaving on the bus tomorrow to live with his mother in Mackay. Robbie arrived and we went to our room.

Norman was willing to leave and chatty on the way over. He climbed the steps normally. However as soon as he was inside he began kicking Robbie who had been pulled to the carpet by Norman. I broke up this fight by calmly separating the two. This upset Norman.

Inside the room he rampaged around scowling. Robbie went to sit down at a desk and Norman attacked him again. Norman got angrier at my intervention and punched the tape recorder with his clenched fist. He then ran out of the room and I settled Robbie with some colouring work. He was happy to stay while I went to find Norman. Norman had returned to his classroom. After a brief discussion with his teacher and Mr Engler I left the room.

After 10-15 minutes Norman returned. Very soon he got angry again (nothing triggered this in the room). He started screaming and yelling obsenities. He was more angrier than ever. At one point he looked at the window and I felt he wanted to punch the glass. He then began kicking Robbie who had begun to cross the room to hide in a side room behind me. As I pulled Norman away from Robbie I held his 2 wrists, one in each hand and he was facing me. Norman then turned to face me and kicked me with both feet hard in the stomach. He swung up and pushed very hard as he used my wrists as a means of jumping up. He was very quick and I could not anticipate this move. I dropped him in self-defence. He then ran out of the room again and I comforted Robbie.

After 5 mins or so his teacher Jenny Simuneck came back with Norman. He then rampaged around the room screaming hysterically. We removed Robbie to a safe place and stood by the classroom door guarding Robbie and preventing Norman leaving in such a dangerous mood. He had picked up a table and threw it at me. Whilst so angry he pulled pictures off the wall, put them in the waste bin and threw it across the desks scattering Robbie's work. He then went to the sink to look for further mischief. He turned on the taps, then looked through the cupboard. He tipped glue down the sink then he found the big scissors. He looked at me as I approached him slowly and calmly. He opened the blades and tried to stab me in the chest. I caught hold of his wrist with my right arm. He pulled away strongly and suddenly. He was screaming with anger. As he jerked my arm he pulled my neck muscles and I felt a sudden sharp pain in my spine which gave me a headache all day. A nerve was torn with this sudden movement. To prevent him running and jerking my now painful arm I caught hold of his foot with my left arm and lifted him off the ground. I did not want to hurt him so I lifted him chest high. He still had hold of the open scissors. As I lifted him I pulled the lower part of my spine. I found I was unable to walk up and down steps without a lot of pain.

Jenny carried the screaming Norman away.

Wednesday 18th

On Tuesday I went to my G.P. who said I was badly bruised and must rest for 3-4 days. He said that with pain relief tablets I should be better by then but my arm would take a month to heal.

Today I was unable to attend classes as it was too painful for me to stand climb stairs or walk. I am in constant pain from the kick in the stomach. My back and neck are also sore.

Thursday 19th

Norman was again reluctant to attend class and when Jenny Simuneck and I were taking him down the steps from the Grade 1 room he told her he would kick her in the guts the same as he did me.

Tuesday 24th

As I was still in constant pain unless relieved by drugs I returned to my G.P. He states that my bladder is damaged and has signed me "off" for 3 days so that I can go into hospital for treatment.

Report written 24.7.84

Signed Barbara Truffet"

Explanation for inconsistency between report and evidence

The plaintiff's explanation for the differences between her recollection at trial and what was contained in the report written by her soon after the events and after she had an opportunity to study that report overnight during the trial, was as follows:
"After this report, between then and today, I have had a nervous breakdown and I have had a stroke and I know that I have had brain cell damage where I have lost certain things, certain things I can no longer do. There was a period of time when I couldn't remember the names of things. I couldn't add up coins. I can't remember sequencing, I can't remember phone numbers and parts of my memory must have gone. I can remember Robbie going out of the room but I have no auditory memory of him screaming. I can just see him going out and I have very clear flashbacks of what happened but I'm not saying that is all that happened. All I can tell you is that I have clear memories of what happened but it's not necessarily the total and I can't remember the report, but if that report says something then that is what happened.

But you also told Her Honour yesterday that after the kicking in the stomach incident, or the abdomen incident, then there was the morning tea discussion with Mr Engler?-- That's right.

In which you say he said he caned or would cane----?--
That's right, and that's what I remember.

Yes, but I'm suggesting to you in your report you make no mention of this discussion with Mr Engler, nor him making any statement that he was going to or did cane Norman Petersen?-- I don't know why it's not there. I can't remember.

And could it be because it didn't happen?-- It did happen. It really did happen. Please don't accuse me of lying.

You didn't see -----?-- I know-----

-----Mr Engler cane Norman?-- I have never stated that I did.

No. But what I am suggesting to you is that could it be, because it's not mentioned here, that it didn't take place?-- It could also be that there was a piece of paper missing in which it was written down.

Is that your explanation for why this report contains no reference-----?-- I have no explanation.

But you were just offering that perhaps there's some other piece of paper-----?-- There is in most circumstances an alternative reason for something. I cannot make any suggestion because I cannot remember." (t/s 61)

From 16 July to 11 December 1984

The plaintiff said that she did not go back to school after the scissors incident because she was in too much pain and could not stand up. She said she returned to teaching whilst still sick in response to another teacher saying how much she was needed. The impression from her evidence was that she had many days, if not weeks. away from teaching between 16 July and 11 December. However Education Department records indicate that she had seven and a half days sick leave during 1984. As her report and the report of the St George Hospital reveals, she probably had only a few days off work in the second half of July.
She continued to experience pain and discomfort in her abdomen region. A diagnostic laparoscopy was performed in Toowoomba on 20 November 1984. No abnormality was observed and there was no pelvic pathology or evidence of residual damage from the kick from Norman Petersen. The plaintiff returned to St George Primary School towards the end of November after this procedure.

The Blow on 11 December 1984

The plaintiff said that at every available opportunity she "badgered" the headmaster to allow her to have Jamie Delaware in her Grade 1 group since Norman Petersen had left the school after the incidents on 16 July. The plaintiff suggested that the "aboriginal community had moved him away" (t/s 19). Neither the headmaster nor Mrs Eddy could recall this as happening. The plaintiff noted in her report of 24 July that Norman had announced at "Show and Tell" on 16 July that he was leaving the following day to live with his mother in Mackay. In any event he was no longer in the school and the plaintiff wished Jamie Delaware to be removed from Wesley Wilson and Jonathan Wright who would "gang up" on him. She thought that he would do well assisting her with the Grade 1 boys. This apparently did not occur. On 11 December the Grade 3 boys were playing a word game around a big blackboard during which Jamie and Wesley were antagonising each other. According to the plaintiff the situation had got to the stage where Jamie was going to "land a punch" on Wesley so she tried to separate them. She put her hand out to move Jamie away so that he would not hit Wesley,
"... and his hand came down on my arm up here and it swelled up like a hen's egg and I couldn't use my arm after that. It was just totally numb, all down these fingers here and it was very hard to use and that lasted quite a few weeks."

The plaintiff sought medical attention from Dr R Bleier. She apparently told him that the child "karate chopped" her left arm. She saw Dr Bleier on 22 December, eleven days after she told him she had been injured. On 29 December the arm was better but the plaintiff still had pain at the extremer flexion of the elbow and elevation of the antero-medial arm. She did not return to see Dr Bleier who had suggested that if it were not resolved within two weeks that he would refer her to an orthopaedic specialist.

The plaintiff's performance as a teacher

The plaintiff said that towards the end of November when she returned to school after the laparoscopy, the headmaster asked for her teaching notes. She said she could not find them, but told him that she had a copy at home and could get them. She said that he was angry and asked her to see him after school. Mr Engler recalled that there was an impression among the teachers concerned that the plaintiff's work with the children was not achieving expected results. Mr Engler expected changes in the way the children behaved and would have been looking for some progress academically as well so that they were more readily able to cope in the normal classroom situation. He said that he and the teachers concerned had been led to expect that the plaintiff could achieve these results from her training and experience as a consequence of conversations with Mr Smekel.
Mrs Eddy was concerned that the boys' (Robbie and Norman) behaviour was not improving with the plaintiff and shortly after the scissors incident sought to have her spend more time with the teachers in the classroom environment. The boys were reluctant to go with her to the domestic science room and had tantrums when required to do so. Mrs Eddy's recollection was that the plaintiff lacked direction and wanted to be told by the class teachers what she should do with the boys assigned to her. The evidence suggests that there was disappointment that the goals set had by no means been attained.
The headmaster prepared a report at the end of the school year concerning the plaintiff's performance as a probationary teacher. He wrote (Exhibit 18):
"Teacher Competencies: Preparation and planning has lacked development, with subsequent limited success being gained from teaching and learning experiences.

Teacher-Student Interaction: The "Special" classroom environment so vital to the success of the unit in which Mrs. Truffet worked, has not been in evidence.

Professional Commitment: Mrs. Truffet has displayed a less than thorough commitment to her pupils.

Additional Comments: I believe that Mrs. Truffet would benefit from an extended probationary period."

The summation alternatives on the form were to mark a box as satisfactory or unsatisfactory and two xx's were placed in the box opposite unsatisfactory.

When asked in evidence if he could elaborate on his report, Mr Smekel said that in general the way a teacher operated in a classroom was closely related to the level of preparation done beforehand. He recalled that there seemed to be little documentation of any planning. He saw no lesson plans or strategies that might have been designed to help the children modify their behaviour nor any special activities for them. He could not recall any of those sorts of things being available to him or in evidence in the classroom. He observed that his expectation had been that a classroom had been provided for the plaintiff which he thought would have been set up in a special way to encourage the children to want to go there and to be happy there. He thought it should have been an encouraging place but recalled that was not evident. He added,

"... If we use the term the children use today, it was a fairly boring environment for them to go to, and it was fairly clear, in fact, the children weren't keen to go to the classroom, that sometimes the teachers needed to encourage and entice them to do so." (t/s 141)

Mr Engler said that his impression was that the plaintiff did not wish to be in the job, did not seem to be happy in the job or in St George.
           The plaintiff maintained that she had been forced to sign this report and was devastated when confronted with it. Mr Engler said the reason a teacher was asked to sign such a report was to indicate to the Education Department that the teacher was aware of its contents and not that the teacher agreed with it. If the plaintiff had refused to sign the report then he would have noted the fact to the Education Department indicating that she had seen the report. The plaintiff's description was rather more dramatic. She said that she was kept in the headmaster's room under duress and told not to leave the room until she had signed the report. She said that Mr Engler stood between her and the door and after three quarters of an hour she was "so thoroughly demoralised and so stressed out emotionally - [her] arm was hurting because it had been damaged - that [she] just signed it to bring the thing to a conclusion because I couldn't take any more and I walked away." (t/s 66)
           Mr Engler thought that the plaintiff might have been able to achieve better results as a teacher if she were in a different environment. It was open to the headmaster to recommend that she not be given a further period of probation. Mr Engler thought that the plaintiff could find some place in the special education system more suited to her talents than the situation at St George. She was transferred to the Toowoomba West Special School with effect from 29 January 1985.
           The special needs class was not abandoned after the plaintiff left the St George Primary School but continued in 1985 with a male teacher. I note that the plaintiff is physically a very tall woman and, to my observation, strongly built although by the trial she walked very slowly and was said to have put on weight. I mention this because there was apparently nothing about her physical person which might have caused concern in regard to her ability to control these boys.

Liability

The plaintiff particularised the defendant's negligence as,
•failing to observe that she was in a position of peril;
•failing to take adequate precautions for her safety;
•exposing her to a risk of injury which could have been avoided;
•failing to provide additional teaching staff to assist her;
•failing to provide a safe place or safe system of working;
•failing to adequately supervise the plaintiff so as to ensure that she was not
•attacked by a student with scissors,
•physically assaulted by students,
•put in a position where students were fighting during the conduct of lessons;

•failing to suspend unruly and/or aggressive students from school when the defendant ought to have known that she was likely to suffer personal injury if she was required to continue teaching such students;
•failing to warn the plaintiff that whilst teaching the students at St George Primary School she would have her physical and/or mental health endangered.

The defendant being in an employer/employee relationship with the plaintiff owed her a duty to take reasonable care for her safety. The liability of the defendant is dependent upon a finding of liability against the headmaster, Richards v. State of Victoria [1969] V.R. 136 at p.138. It was clear to the headmaster and the other teachers at the school that some of the students had behavioural problems. As was said by Mason J in Wyong Shire Council v. Shirt (1979-80) 146 CLR 40 at pp. 47-8,
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibility which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. the magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

There was a general obligation to prevent aggressive children from injuring other children, Richards v. State of Victoria supra. It would not be far fetched or fanciful to suppose that a teacher going to the aid of another child might sustain some physical injury from an attacking child either deliberately or because he or she intervened in a fight. The children were selected for the plaintiff to teach because they had behavioural problems which, apart from other learning difficulties which they might have had, did not permit them to participate appropriately in the educational programs of the school. The plaintiff said that she had a number of discussions with Mr Smekel, she looked at histories of the children, she discussed her position with Mr Engler prior to starting work and on or about the day she arrived Mrs White-Davidson discussed strategies for behaviour modification in the children. I have concluded that the plaintiff would have been made aware that the children had these problems. The plaintiff was employed to assist these children and the teachers in modifying their behaviour to allow them to participate in the educational life of the school. The plaintiff had advanced her application for appointment by laying stress upon her competence and skill in dealing with anti-social children. As a matter of educational theory, as the witnesses acknowledged, it may now be seen as a strategy less likely to be successful to isolate those children from their peers than to retain them in a normal classroom. That however, does not give rise to a finding of negligence.
           Norman Petersen and Robbie Thurston did fight and apparently sufficiently seriously for their regular Grade 1 teachers to use some physical force to separate them on occasions. After she had been at the school a short period the plaintiff said she told the headmaster that she was achieving some success with them being together. Neither the headmaster nor the Grade 1 teachers had any particular expertise in the area of special education. They understood that they had been sent an expert, although as early as 16 July it seems that they had doubts about her effectiveness.
           Given that there was some foreseeable risk of physical injury to a teacher in the plaintiff's (or indeed Ms Simunek's or Mrs Poplawski's) position in the way in which I have suggested, what was the appropriate response? The plaintiff conceded that to exclude the children completely from the educational system was not called for, but only by having each boy at a different educational establishment could the risk of fighting between Norman Petersen and Robbie Thurston on the one hand and Jamie Delaware, Wesley Wilson and Jonathan Wright on the other, be eliminated completely. This seems to have been completely impractical, particularly in a country town. In any event the risk of injury to a teacher against the background of the children's conduct prior to the plaintiff's involvement was not of the kind which called for such an extreme response. Their class teachers were managing them and the plaintiff came to the school as an expert in behavioural problems. I find that nothing out of the ordinary occurred on the morning of 16 July to alert Mr Engler, Mrs Eddy or the plaintiff that anything untoward was likely to occur which would put the plaintiff in a position of peril. There was, I find, no caning incident or anything else emanating from the headmaster which led to Norman Petersen's rampaging conduct ending with the scissors incident.
           The plaintiff pleads that she ought to have been provided with an aide to assist in controlling the boys in her charge. She had charge of two 6 year olds in one group and three Grade 3 boys in the other (putting aside the third group who cause no difficulty). There was no basis for the allocation of an aide but even so Mrs Eddy was present on the scissors occasion when the plaintiff dealt with Norman Petersen as she did.
           Although the risk of injury of some minor physical kind, such as bruising from a kick, a twisted arm or wrist or even a bite from a young child, was foreseeable, it was unlikely to occur against the past experience of the class teachers of these boys. The arrangements made for the plaintiff's work did not fall below acceptable standards for her safety. The plaintiff does not plead as a particular of negligence that she was, by mid-July 1984, clearly unable to do the task for which she had been sent to St George Primary School and ought not to have been required to be with these difficult children on her own. Even had such an allegation been made, whilst the headmaster came to recognise the plaintiff's incompetence as a special needs teacher at St George by the end of the school year, nothing as at mid-July would have caused him to conclude that there was a real risk of harm to her which ought reasonably to be avoided by withdrawing her from teaching alone. I conclude that the plaintiff has not demonstrated to the requisite degree any breach of the duty of care which was owed to her by the defendant.
Contributory Negligence
           Mr Samios for the defendant submitted that if the plaintiff is successful in establishing that there was a breach of duty of care owed to her she contributed to her damage and injury in that she confronted Norman Petersen and allowed him to have access to the scissors in the room over which she had control knowing of his conduct. He also submitted that she should not have picked Norman up when she knew that he was a strong boy.
           Had there been a finding of liability against the defendant I would not have concluded that there was any contributory negligence on the part of the plaintiff. Her response may not have been entirely sensible but it was a situation which blew up very quickly and it could not be concluded that her response showed a want of care for her own safety in the relevant sense.
Causation
           The plaintiff said that she felt unwell after the attack by Norman Petersen and was in pain a lot of the time. She felt very defeated and very much under pressure to succeed. She said that she was "mentally absolutely shattered" as a result of having to sign the form assessing her professional competence by the headmaster. She was unable to get up in the morning and could not stop crying and asked for a transfer. She returned to Toowoomba and was appointed to the Toowoomba West Special School where she had done her pre-appointment trial. The children that she was required to teach were profoundly handicapped - an area which the plaintiff said she had never worked in before and for which she had never been trained. She maintained that she was in great pain all the time in her joints and worked "under the cover of painkillers". The plaintiff also maintained that she was the victim of a conspiracy by the staff at the school that she be shown in a bad light so that some other person who was a friend of a staff member would be appointed. A letter from the principal to the Department of Education Personnel Branch (exhibit 27), makes plain that her teaching performance was regarded as most unsatisfactory to such an extent that he wrote "to have her reappointed to this school would be traumatic for all concerned". The principal had been asked whether the plaintiff's performance had been affected by her illness which she had asserted in correspondence with the Department. He wrote
"I can only say that she did not appear unhealthy and that, at the beginning of 1985, she stated that she was 100%."

She was asked whether she sought any psychological or psychiatric assistance at this stage and said no but added

"I had one incident where I had a stroke while I was carrying a child when I saw Dr Bleier and then he started to think there was something wrong" (t/s 25).

The plaintiff said that she had a nervous breakdown in June 1985 and thereafter the family came to Brisbane to live. The plaintiff has had ongoing psychological symptoms to which I will refer when discussing the plaintiff's damages.
           Dr M Theodoros, psychiatrist who was the plaintiff's treating doctor from June 1986 thought that her depression was due to chronic pain, the stressful events of July 1984 and the questioning of her professional competence. She had suffered a loss of self-esteem and was demoralised.
           Dr Nothling examined the plaintiff in 1995 for a medico legal report. The plaintiff had given him a colourful account of what had transpired in St George in 1984 to which I have referred earlier. Dr Nothling considered that the plaintiff had a pre-disposition to depression and that the events at St George were a minor contributor in terms of the depression with which she was afflicted when he examined her in 1995.
           If the defendant breached the duty owed to the plaintiff in respect of the incidents on 16 July and 11 December 1984 there is evidence to link the psychological sequelae with those events. Mr Taylor for the plaintiff has referred to Mt Isa Mines Ltd v. Pusey [1971] 125 CLR 383 but on the evidence the psychological and psychiatric damage suffered by the plaintiff arguably had its origin in part in the physical attacks upon her. It is unnecessary to resort to the principles enunciated in that case concerning as it does mental illness without any physical injury. It is a matter of adjusting the plaintiff's damages because of her pre‑existing psychological condition and other non-compensible stressors in her life both before and after the events at St George.
           Mr Samios has submitted that there was nothing to link the plaintiff's episode of urine retention which was dealt with in the St George Hospital with the kick to the plaintiff's abdomen by Norman Petersen on 16 July. The evidence suggests that there is such a link but that the consequences were soon over.
Conclusion on Liability
           As expressed above I have concluded that the defendant did not breach the duty of care which it owed to the plaintiff.
Quantum
           Although I have not found in favour of the plaintiff with respect to liability nonetheless, as is the usual practice, I will make an assessment of the plaintiff's damages.
           The plaintiff and her family moved to Brisbane in the middle of 1985. Mr Truffet opened a Conias Apollo real estate office in Lutwyche and in an effort to get his wife out of the house where she was exhibiting symptoms of depression in conjunction with her complaints of pain in her neck, back and knee he persuaded her to come into the office with him. She helped by answering the telephone when he was out of the office and was paid casual rates for a period until about February or March the following year. Mr Truffet thought that she had worked for about three months. He said that this was not a good idea and that at times her pain was so severe that she required painkilling injections directly into her skull.
           Gradually it was necessary for Mr Truffet to spend more and more time looking after his wife. Initially he worked part time and then went on to a carer's pension in order to look after her full time. She was able to do very little housework or nurturing of her children. In due course the children were to go to university and by then the family finances were in a parlous state. Mr Truffet decided that he needed to go back to work and that the domestic situation could not continue particularly because of the adverse effect on the children. The plaintiff had started seeing Dr Michael Theodoros in mid-1986 for ongoing psychiatric treatment and saw him about three monthly until June 1989. She had an abdominal hysterectomy in mid-1989 carried out at the Mater Hospital. She and her husband were divorced in 1990. The children lived with their father and for twelve months they declined to visit the plaintiff blaming her for the distressing family situation. The plaintiff was made bankrupt during this period as a result of her inability to pay debts which had been incurred as a consequence of the lack of income coming into the family. As I understood her evidence, it was on her own application. After about twelve months Mr Truffet resumed contact with the plaintiff and assisted her with shopping and doctors' appointments.
           The plaintiff has obtained some social outlets since her divorce. She participates in her local church. Through its members she has assisted one or two children who have learning difficulties by giving them some tutoring. Occasionally she receives a small honorarium for this work. She is or was a member of a political party and did a small amount of word processing for them. She has become engaged to a man of similar age who is supportive of her.
           X-rays taken in October 1985 showed degenerative changes at C5-6 and C6-7 and minor degenerative changes in the lumbar spine. The x-rays performed in March 1995 demonstrated severe degenerative disease at the C5-6 and C6-7 levels and in the lumbar spine narrowing at the L3-4, L4-5 and L5-S1 levels. X-rays of the plaintiff's right knee joint demonstrated early degenerative change in the patella and tibial spines. Both Dr J Curtis and Dr D Morgan orthopaedic surgeons concluded that the plaintiff was suffering from degenerative disease in her cervical spine prior to the events in July 1984. Dr Morgan mentions in his report (exhibit 23) some symptomatology in her spine prior to that time to the extent of occasional stiffness first thing in the morning.
           When he first saw her in July 1986 Dr Curtis described the plaintiff as having moderate residual stiffness and discomfort in the neck and assessed that disability as representing some 15-20% loss of function of her cervical spine as a whole. He considered that the symptoms in her right arm were of nuisance value only and represented no actual disability and was not able to say whether the problems emanated from contusion of the ulnar nerve where she sustained the blow from the child or from entrapment of the affected nerve roots in her cervical spine. He noted that the plaintiff continued to have discomfort in her right shoulder and elbow joints as a consequence of the twisting to those parts of her body by Norman Petersen and these symptoms represented some 5% loss of function of her right upper limb. He noted that she experienced moderate pain and stiffness in her lumbar spine and that that represented some 10% loss of function one-half of which he suggested might be apportioned to the incidents in July the other as I understood his evidence would be attributable to her naturally occurring degeneration.

           When the plaintiff consulted with Dr Curtis in January 1987 he noted that she continued to experience pain in the back of the neck which had worsened requiring a pethidine injection for its release. She continued to have episodes of pain in her right shoulder associated with activities; pain around the lateral aspect of her right elbow; numbness of the little and ring fingers of her right hand and of the ulnar border of her right hand; weakness in her right arm; intermitted episodes of pain in the interscapular region of her spine; low back pain precipitated by prolonged immobilisation or by bending, stooping and lifting; pain and paraesthesia extending down to the back of her right leg as far as the knee and calf after prolonged immobilisation and standing; intermittent episodes of discomfort in the front of both knees when ascending steps and sloping surfaces; persistent swelling and discomfort of both ankles and feet; and discomfort in the supra pubic region of her abdomen.
           The plaintiff told Dr Curtis that she was able to perform only light domestic tasks for short periods and was reluctant to resume driving because of her painful neck and headaches. Dr Curtis assessed her percentage disability in the cervical spine at 25% recommending that she continue to wear a cervical collar and have intermittent courses of physiotherapy. He thought that consideration would need to be given to her undergoing surgical decompression and fusion of the affected segments in her neck. He concluded that the clinical features of the plaintiff's right arm were such as to suggest a direct injury to the right ulnar nerve near the elbow rather than an injury to the nerve within the cervical spine. He thought that consideration may need to be given to her undergoing an exploration and interior transportation of the ulnar nerve. He assessed the disability of her right upper limb as some 10% loss of function. He maintained his assessment at 10% loss of function for her lumbar spine. Dr Curtis finally reported on the plaintiff in October 1995 at which time she continued to experience much the same sort of pain that she had complained about in 1987 except there had been some improvement in the range of motion in her cervical spine. He concluded that taking into account all of her limitations that her disability could be assessed as representing some 20% impairment of the whole person. Dr Curtis concluded that the plaintiff's degenerative condition was in existence prior to her injuries in 1984 and that within some ten years from 1984 she would have been in the same condition that she presented to him. He had by then revised his opinion about operative procedures and concluded that there was no indication for operative intervention but was of the opinion that she was unable to perform the duties required of her as a primary school teacher and was destined to remain an invalid pensioner.
           Dr David Morgan examined the plaintiff on 10 March 1995. He performed a number of tests designed to demonstrate inconsistency and/or overreaction and found that "wildly different results were obtained ... that indexed inconsistency and an exaggeration," (t/s 174) not attributable to psychogenic pain but deliberate exaggeration. He thought that the scissors incident may have given rise to some form of musculo ligamentous strain injury as the plaintiff attempted to lift the child and was spun around to the right side. He was adamant that such forces would be insufficient to give rise to any significant disruption to the spine particularly where there were at least five different disc levels involved. Dr Morgan concluded

"The fact that her disease is so severe and so widespread suggests to me that there is some other, very much more important underlying anomaly and that's a constitutional or molecular anomaly. It is not one related to this single event." (t/s 174)

In his opinion a persistence of discomfort at an increasing level over a ten or eleven year period would lie outside the normal course of the progression of a musculo ligamentous strain injury. He concluded that it was unlikely that the incidents at St George had any significant longlasting or material effect upon the plaintiff's pre-existent underlying and progressive cervical-lumbar spondylosis and that none of her presently measurable functional loss could be reasonably attributed to what occurred at St George. He found no evidence of neurological dysfunction in the right arm. From an orthopaedic point of view he thought the duties required of a schoolteacher would be possible for her.
           Although Dr Curtis had the advantage of seeing the plaintiff on three occasions, nonetheless I prefer the opinion of Dr Morgan particularly bearing in mind the level of force which the plaintiff says was applied to her by Norman Petersen and what was seen by Mrs Eddy. Dr Morgan had indicated that the forces operating on the plaintiff would have been no more than the forces exerted on a person playing vigorous body contact sport. From his experience that does not result in severe dual level discal disease in the spine.
           The reports of Dr Paul Truscott, obstetrician and gynaecologist of 16 July 1986 (exhibit 6) and Dr George Tucker, physician of 3 December 1984 (exhibit 2) together with that of Dr David Salter, obstetrician and gynaecologist of 26 July 1989 (exhibit 4) make clear that the persistent pain which the plaintiff experienced following the kick in the abdomen by Norman Petersen in July 1984 resulted in no internal damage or abnormality. The uterine fibroids seen during the laparoscopy in 1989 could not have been caused by that trauma.
           Although the plaintiff has suffered and will continue to suffer pain and discomfort in her joints it is her psychiatric status which, on one view, is the more serious. Dr Theodoros and Dr Nothling assessed her as having a significant degree of depression. They both thought that she suffered a loss of self-esteem and was demoralised by the events that occurred in St George but noted that she had previously suffered from a depressive illness following the birth and death two days later of her firstborn child. She had then been treated with drug therapy over a lengthy period of time. Mr Truffet noted that it was about 18 months before she was able to proceed with her life normally. The plaintiff suffered post-natal depression following her other pregnancies. Dr Theodoros commenced the plaintiff on a course of psychotherapy and antidepressant medication which was not altogether successful since it had adverse effects on her. The plaintiff ceased treatment with him in June 1989 after twenty-three consultations.
           Dr Nothling noted that the plaintiff had experienced other significant psychosocial and medical stressors in addition to the problems which she experienced in St George in 1984. These included a hysterectomy in 1990, the break‑up of her marriage and divorce, bankruptcy and a total knee reconstruction operation in 1994 following a fall. He considered that the plaintiff had a predisposition to depression and that she was accordingly vulnerable to responding to crises in her life in the way in which she has done. He concluded that the effect of the work situation in 1984 in terms of the exacerbation of her underlying depressive condition "would be a minor contributor in terms of her current depression". He concluded that the other significant psychosocial and medical stressors that have occurred since 1984 "have collectively been the significant stressors in terms of her current psychiatric condition".
           Dr Nothling recommended that she continue to have psychiatric treatment as an outpatient over a three year period which would cost approximately $2,000 per year. He concluded that she would require antidepressant medication from her general practitioner for about another two years following cessation of the formal psychiatric treatment which would be about $1,000 per year. He though that thereafter she would be fit for some teaching duties.
           Given the plaintiff's age and the long period of time away from the workforce I think it most unlikely that she will ever be able to return to remunerative employment in any significant way. She may be in a position to do private coaching from time to time which will bring in some small income.
           Although the plaintiff denied finding the move to St George without her husband difficult or stressful the conclusion seems inevitable that she was not finding the work congenial and the family arrangements were less than satisfactory leaving her responsible for the Monday to Friday wellbeing of her two children as well as performing the domestic chores. Mr Truffet thought that his wife was a fit and competent person prior to her transfer to St George although he indicated that their period of time as houseparents for the children in England had been very wearing for himself. The plaintiff denied that it had been difficult for her. The Truffets had engaged in quiet recreational pursuits when they lived in Toowoomba. The plaintiff had creative outlets and enjoyed embroidery and other fine work. Dr Theodoros and Dr Nothling considered that there was a link between the episodes at the St George Primary School and the plaintiff's psychiatric condition although it is clear that the account of her period there was grossly exaggerated in so far as she said that she was subject to violent assaults by the students on a regular basis throughout her time there. It seems plain that the plaintiff was quite disturbed by her inability to perform adequately at her work but the events in July and December have become convenient episodes in respect of which all her subsequent pain and unhappiness can be attributed.
           Had liability been found against the defendant evidence supports the conclusion that as a consequence of the events in July the plaintiff received some musculo ligamentous strain which caused her quite severe pain which may well have taken some months to settle down. The events themselves together with the pain experienced and, as I have concluded, the plaintiff's general unhappiness with her situation at St George would have been sufficient in my view to trigger her pre-existing disposition to depression. The plaintiff's self-confidence was undermined. She did not succeed in her posting at Toowoomba. The pain which ought to have abated from the July incident continued in some form although the principal there was not made aware of it. The arm pain ought to have settled but it persisted on, no doubt due to psychiatric causes. It seems that any pain that the plaintiff experienced whilst teaching in Toowoomba has been exaggerated in the re-telling.
           There seems little doubt that orthopaedically the plaintiff's condition declined at about the same time from her naturally occurring degeneration particularly in her neck compounded by her depression. The plaintiff was more likely than not to have reacted similarly to any number of adversities and did so, according to Dr Nothling, irrespective of the incidents at St George. The plaintiff urges that none of those subsequent misfortunes would have occurred had she not been injured at St George. Some, as I have mentioned, such as the hysterectomy and the knee reconstruction operation were quite unconnected. It seems that the major stress at St George was the plaintiff's failure to achieve in her job which could not be attributable solely or even principally to any physical pain which she was experiencing during August-December 1984 consequent upon the events in mid-July. It is a difficult exercise to disentangle the plaintiff's damage which might be attributable to those events had liability been found in her favour from naturally occurring physical deficits and her likely depressive response to reverses.
           There has been little argument with the figures advanced on behalf of the plaintiff. The wages which she would have received had she continued teaching are set out in exhibit 34. The plaintiff remained in remunerative employment until June 1985, thereafter she was in receipt of social security benefits. Whilst much was made in cross-examination of her work for her husband in 1985/86 and her occasional tutoring, so little was likely to have been earned that it need not be taken into account.
           The plaintiff's pain and suffering is claimed in the sum of $60,000 which seems to reflect the whole of her disability since July 1984. She would, on the best evidence for her, have reached the same physical condition by 1994. Her psychiatric condition which was triggered by a number of circumstances and events at St George was expected to resolve with treatment within three years to be followed by a course of medication for a further two years according to Dr Nothling. I would propose assessing the plaintiff's damages over a period of five years following the events of July 1984 on the basis that although her physical symptoms would have settled within 6-9 months had she not had a depressive reaction, the depressive condition which contributed to the prolongation of her pain would have been spent by then. Thereafter her symptoms both physical and psychiatric can reasonably be attributed to other non-compensible causes in her life. This approach is, in a sense, a denial of the subtleties of cause and effect but is an attempt in some broad way to attribute liability.
           I would allow the following damages

Pain and suffering and loss of the amenities
of life in the past $30,000.00

Interest on the whole of that amount
at 2% per annum for 12 years $7,200.00

Special damages including interest $1,989.00

Past loss of earning capacity (as per ex. 34 for five years) $94,139.39

Interest on $20,000 for 11 years at 6% per annum
(less D.S.S. payments) $13,200.00

Future loss of earning capacity Nil

Fox v. Wood $617.85

Refund to the Workers' Compensation Board ($3,137.35)

Future psychiatric care Nil

TOTAL:$144,008.89

There will be judgment for the defendant against the plaintiff.
I will hear submissions as to costs.

[1997] QSC 103

11 June 1997