District Court New South Wales Medium Neutral Citation: Moriarty v Department of Education [2020] NSWDC 368 Hearing dates: 3, 4, 9 March 2020 Date of orders: 1 July 2020 Decision date: 01 July 2020 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: (1) Verdict for the Defendant. (2) Subject to any application within 14 days through my Associate to relist the matter for any further or other order as to costs, the Plaintiff is to pay the Defendant's costs. (3) Exhibits to be retained for 28 days. Catchwords: WORK INJURY DAMAGES– Where Plaintiff is a support officer for children with disabilities in a high school – Plaintiff is struck by soccer ball kicked by a child and suffers neck injury – Whether a failure to adequately supervise amounted to a breach of duty– Whether breach caused the Plaintiff's injuries and whether the risk of harm was foreseeable Legislation Cited: Long Service Leave Act 1955 (NSW), s 4 Cases Cited: Bennett v Minister of Community Welfare [1992] HCA27; (1993) 176 CLR 408 Carswell v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2012] QSC 253 CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 Fox v Wood (1981) 148 CLR 438 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Haines v Rytmeister (1986) 6 NSWLR 529 Henderson v State of Queensland (2014) 255 CLR 1 Jones v Dunkel (1959) 101 CLR 298 Re Day [2017] HCA 2; (2017) 91 ALJR 262 Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 State of New South Wales v Sticker [2015] NSWCA 180 Category: Principal judgment Parties: Gabrielle Moriarty (Plaintiff) Department of Education (Defendant) Representation: Counsel: Mr J De Greenlaw (Plaintiff) Mr L. Morgan (Defendant) Solicitors: Gerard Malouf and Partners (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2018/363852 Publication restriction: N/A Judgment 1. The Plaintiff brings proceedings for work injury damages arising from an event on 27 March 2012, in the course of her employment at Pendle Hill High School as a Student Learning Support Officer.1 On that occasion she sustained injuries after being struck by a soccer ball in the head, which was kicked by a Year 11 male student referred to throughout the hearing as DJ. The Plaintiff alleges that her injuries occurred as a result of the Defendant's breach of duty to take reasonable care to provide a safe system and environment of work. 2. The Plaintiff relied upon her own evidence as well as a report [1] and oral evidence of Ms Sharon Todd, a Professional Ergonomist from Crawford Giles & Associates. The Plaintiff also relied on documentary evidence contained in a bundle. [2] 3. The Defendant called Ms Ida Consalvo, who was employed at Pendle Hill High School since 1987, first as a teacher, and more recently as a careers advisor. [3] Her evidence was that in the careers advisor position she was also required to perform duties required of others teachers including roll call, playground duties, sports roll call and the like. [4] At the time of the Plaintiff's injury, Ms Consalvo was on duty with another teacher to supervise a sports session in the vicinity where the Plaintiff was struck. Also called in the Defendant's case was Ms Judith Anne Simms who since May 2000 has been the Principal of Pendle Hill High School. The Defendant also relied on documentary evidence contained in a bundle. [5] LIABILITY Plaintiff Employment 1. In her role as an SLSO, the Plaintiff stated was that she was tasked to encourage children, to teach them correct behaviour but also to help them strive. She stated that they would be given challenges within their limits so that they could grow. She described this as including life skills, teaching them manners, how to attend to class on time, how to go to the bathroom correctly and school work as well. [6] The Plaintiff described that in 2012 there were four "teacher's aides". [7] She stated that they would share the students, doing different things during the day. [8] Sports Day 1. On 27 March 2012 the Plaintiff was allocated to care for a child referred to throughout the hearing as ME. [9] The Plaintiff described ME as a Year 7 student who had Asperger's Syndrome and with whom she enjoyed working with. [10] She described him as a person who was physically okay, but had anxiety, outbursts and rituals. [11] She described him as very slim and of average height. [12] She described him as "a beautiful soul", [13] and that he wouldn't physically hurt someone. Specific things which would trigger him were raised voices, swearing and large groups of children. [14] 2. The Plaintiff gave evidence that she went to the classes with the students under her care, which included sports sessions. On this particular day, she attended a sports session with ME. [15] The Plaintiff stated that the whole school was divided up into groups and would take turns rotating around different sports. [16] 3. She stated that ME was in one of the groups. [17] She stated that on average, each group had around 30 students but not all turned up. [18] The Plaintiff stated that teachers were assigned to supervise each sport, and the two teachers who were to supervise the soccer session were Ms Consalvo and Mr Charlie Muraffa. [19] She described that the latter was a casual teacher who had been at the school for approximately one year. [20] 4. In cross-examination, the Plaintiff conceded that if a student had any particular talent for sport they would be put in an organised game, such as representing the school. [21] She described that the children in the sports group she was in were 50% interested, 50% not interested in participating in the sport. [22] She said that it often depended upon the teacher in charge giving encouragement to students to participate. [23] 5. The Plaintiff stated that having been assigned to look after ME her role was to keep him contained, in the sense of encouraging him into the sport, making sure he was safe, and keeping him occupied. She stated that she had to ensure his anxiety was under control. The Plaintiff described that her role was not to supervise the sport session, as that was the responsibility of Ms Consalvo and Mr Muraffa. [24] 6. Initially, the expectation was that the session would be an indoor soccer game of approximately two hours. [25] However, when they got to the school hall, it was unavailable, and they proceeded to the oval which was next door. [26] At the oval, the Plaintiff said she introduced herself to Ms Consalvo, they called the roll and Mr Muraffa had the soccer balls. [27] Mr Muraffa then pointed in the direction of the field and told the students where to go. [28] The Plaintiff stated that more than half of them stayed in the shade near the hall, and approximately 10 to 12 of the students went onto the field. [29] In cross-examination, Plaintiff stated that after the students proceeded from the hall, one half went and sat under the shade. [30] The Plaintiff stated that some of the children went to the left of the hall facing Cornock Road, and some were on the top right of where the trees were. [31] Whatever the numbers, the Plaintiff conceded that the person who was supervising would have to look after the students both on the field and off the field. [32] 7. In cross-examination, the Plaintiff stated that the activity aimed to start around 1:00pm, [33] but that the game actually commenced around 1:20pm. [34] 8. The Plaintiff stated that the goalpost was positioned approximately 8 to 10 metres from where Ms Consalvo and Mr Muraffa were sitting, with the trees approximately 2 to 3 metres behind them. [35] 9. In cross-examination, the Plaintiff stated that the two permanent goal posts which were depicted in Exhibit 2 were not being used and the children were playing closer. She stated that there was another sport activity on the other side of the field and that the other students were in a separate group. [36] As far as she could recall, the group she was with was in unstructured activity, while the other group was in structured activity. [37] The Plaintiff stated that the goal posts being used were 8 to 10 metres from the trees and that they were playing at the edge of the playing field. [38] She rejected the suggestion that they were using one of the permanent goalposts in the game they were playing. [39] 10. The Plaintiff stated Ms Consalvo and Mr Muraffa were approximately in the position as the two persons photographed in the Exhibit 4 but described them as sitting with their backs to the base of the tree. [40] She stated that the teachers were in front of her as she was able to look past them and that she was slightly up the rise and a bit further back. [41] The Plaintiff stated that she stood back from the teachers so she could see the goal posts, which was parallel or a bit further from the steps, enabling her to see the whole field, and in particular, ME who was playing. [42] The Plaintiff stated that the goal posts were parallel to the steps, shown in Exhibit 4, give or take a metre or two. [43] The Plaintiff stated that the goal posts were not right up against the stairs, and estimated that they were between 8 to 10 metres from the stairs. [44] DJ 1. One of the other student participants was DJ. He was in Year 11 and was described by the Plaintiff as a "big solid boy." [45] The Plaintiff stated that he was someone who was very fit and tall and he played first grade for "Wenty Leagues", a Rugby League club. [46] 2. In cross-examination, the Plaintiff stated that DJ could have possibly been 15, 16 or 17. [47] It was put to the Plaintiff that DJ was not an athletic individual, nor was he a "big fit boy." [48] She then stated that DJ had told her that he got a position in first grade the previous year and that she meant first grade for his age. [49] She rejected the suggestion that she exaggerated her evidence to make DJ sound like he was a bigger kid than he was. [50] On the field, the Plaintiff said no other student his size was there. [51] She stated there were four Year 7s on the field that were with ME and recalled that there were two Year 9 boys she was familiar with, but could not recall the other children. [52] She did recall that they were all different sizes. [53] 3. In cross-examination the Plaintiff stated that up until the occasion in question she thought she had a good rapport with DJ. She had attended classes with him and assisted him at times when he was struggling. [54] 4. The Plaintiff recalled that on the field DJ was telling the other players what do and to get into teams. [55] At that point, he was the "goalie" and the Plaintiff described the Year 7 boys kicking the ball into the goal. According to the Plaintiff at that stage, there was no supervision, no refereeing and the children were just basically kicking the ball around while DJ was trying to organise "somewhat of a game." [56] Ms Consalvo and Mr Muraffa were described as walking over to a tree in the shade and sitting down. [57] 5. The Plaintiff described that the children running around the field were successful in scoring goals and DJ was not happy with them achieving that and started swearing at them. [58] In cross-examination the Plaintiff confirmed that this occurred relatively early in the game because a goal was scored on a first attempt. [59] 6. The Plaintiff described DJ as expressing with anger and directing them to "f-off" and physically standing over the younger boys. [60] That included ME and three other Year 7 boys. [61] The Plaintiff stated that at point she was standing near the teachers but was watching the game. [62] She said that the teachers were approximately 2 metres away. [63] She stated that she easily heard what was being said as she was facing the oval, while the other teachers were facing away. She described the two teachers as effectively looking down the sideline away from where the soccer was being played. [64] The Plaintiff gave evidence that neither Mr Consalvo nor Mr Muraffa did anything when DJ swore at the Year 7s boys. [65] 7. Once the Plaintiff saw DJ physically intimidate the boys, she stated that ME was running away. She described him as full of anxiety and as he was pacing he stated "Why does he have to do it, why is he swearing at me?" In cross-examination the Plaintiff stated that at the time ME came off the field it was early in the game and ME would have been playing for around 15 to 20 minutes. [66] 8. The Plaintiff stated that she went up to DJ and said to him, "Now come on mate. It's a game of soccer." To that, DJ responded, telling the Plaintiff to "fuck off." [67] The Plaintiff stated that she was pretty sure she responded stating "DJ that's not necessary" or something like that. The Plaintiff said she was not allowed to discipline the students as that was the role of the teachers. [68] In cross-examination the Plaintiff stated that her interaction with DJ was not aggressive, noting that she was very civil, acting in a controlled manner and tried to calm him down. [69] 9. The Plaintiff stated that she did her best to calm ME down and following a short period of encouragement he stayed on the field playing for a while before subsequently losing interest. [70] 10. In the meantime the Plaintiff stated that she had gone to the two teachers and told them what had gone on. [71] She recounted in oral evidence: Q. --the words that you used to explain what happened? A. I asked them whether they had seen the incident. They said no. I said, "Well [DJ]s just on the field calling the year 7s 'f'ing cs' and getting quite aggressive to them." And, "No, we didn't see that." And I said, "Well I've just gone and spoke to him and he's told me to f off." And that was it. And they're just, "What do you expect?" [72] 1. The Plaintiff said that thereafter nothing happened and the conversation went on to the bad behaviour of the students and how Ms Consalvo hated doing sports as it was a waste of her time and she had better things to do. [73] She stated that Mr Muraffa thereafter would occasionally shout out to some of the kids "Oi, come back here" and was leaning on the one leg on his knee. [74] Otherwise, neither of them moved from their position. [75] In her statement, the Plaintiff described earlier hearing the two teachers discussing how they resented having to supervise sport and that to her observation they were not actively supervising in any event but merely being present. [76] 2. The Plaintiff stated in cross-examination that thereafter DJ continued to swear at her but she took no notice of it because she wasn't going to engage in such poor behaviour. She described him as trying to engage her but that she was hoping that he would've calmed down. Then she added: …I don't know, I just assumed he would've lost interest. But he was swearing and I thought it was directed at me. I could be wrong, it mightn't have been at me. Q. You can hear some swearing behind you but there was no direct-- A. I don't know. Q. --interaction between you and DJ? A. Earlier on, "Miss", you a few things, but at that stage I don't think so. There was just the normal swearing that goes on. Q. The normal swearing that goes on? A. Absolutely. Q. Just on that point, is that something you found particularly offensive given your background? A. I found it extremely offensive. I found it extremely offensive, yes [77] 1. In further cross-examination the Plaintiff was unable to estimate how long ME remained on the field, but stated that it was definitely not twenty minutes to half an hour. [78] She stated that after ME left the field, she went to front or side of the hall parallel to the tennis courts to try and placate him and bring him back to the group area. [79] 2. The Plaintiff stated that after that, ME came to the stair area near the sporting field and was walking up and down the steps on the hill. [80] She said that she gave him space because he didn't want anyone near him. [81] The Plaintiff accepted the photograph, which was tendered as Exhibit 4, indicated the stairs that ME was walking up and down on. [82] Plaintiff Struck by Ball 1. The Plaintiff stated that she remained in the vicinity of ME, near the field and close to school hall, with ME approximately five metres away. She stated that at that point she was watching ME. [83] Whilst she observed that there were probably be about 5 or 6 Year 7 students on the field, she stated that her focus was on ME. In cross-examination, however, the Plaintiff stated that she was facing the teachers at that point, but not directly looking at ME. [84] In any event, the Plaintiff stated that there was activity behind her, but it did not comprise of formal sports being undertaken. [85] She was then asked whether something happened, and she replied as follows: … A. I heard shouting and the next thing I know that I'm knocked to the ground and there's something, a soccer ball has hit my head with quite a lot of pressure, I've fallen on to my knees because it's a slope and it was horrendous because I could feel every crack going down my spine and it was just - and some shouting, a lot of shouting and I wasn't sure whether it was, I wasn't, it was [DJ] shouting at me but I, I didn't know whether he was telling me to F off or something and then the girls who I was quite near, they said "Miss he just said you should've ducked", and I thought, I thought F, the duck, I thought he was just swearing at me again, so-- Q. But as you ascertained he wasn't swearing at you? A. He wasn't swearing, according to the girls and the witnesses there I should've - and then he ran away and he started saying something about ducks again and I'm like what and needed the girls to tell me what— [86] 1. In cross-examination the Plaintiff stated that she was struck at some time after 2.30pm as the students had been whinging about the time. [87] She accepted that in approximate terms, it was an hour after she had spoken to DJ. [88] The Workers' Compensation Claim form, which by its contents appears to have been completed by the Plaintiff, states that the incident occurred at 2.40. [89] 2. The Plaintiff added that the incident occurred within half an hour to forty minutes of the end of the school day. [90] She specifically rejected that at that time three groups of children had come together and maintained that each sport group was in their separate areas. [91] She stated that the only other teacher who came to join the group prior to her being struck was Mr Swinnerton, who went to speak to number of children who were hanging around in the pathway between the tennis courts. He walked away shortly afterwards. [92] Report 1. The Plaintiff said she was then assisted by the girls and neither Ms Consalvo nor Mr Muraffa came over to her. [93] At one point Ms Consalvo asked if she was okay and she responded, "What do you think Ida, what do you think." [94] After that she went to the office to report the incident. [95] She stated that she reported the matter to Ms Barton, the Student Administration Manager, and another assistant, whom she described as Lyn, who gave her a pamphlet book with the details of what she needed to do. [96] 2. On 27 March 2012, the Plaintiff completed Report of Injury and Workers' Compensation Claim forms. The Report of Injury reported the time of the incident as 2.40 pm and the description of the incident as follows: "Student kicked the football which hit on employee head [97] 1. The report also recorded that there were no witnesses. 2. The Workers' Compensation Claim form dated 12 April 2012 also recorded the time of the incident as 2.40pm and noted Ms I. Consalvo and Mr Muraffa as witnesses. The description of the incident was as follows: "Yr 11 Student kicked ball onto my head, whilst I was facing in opposite direction" [98] Defendant's Witnesses Ida Consalvo 1. In the Defendant's case, Ida Consalvo was called. There was no issue as to her presence on the occasion in question. [99] 2. She described her task as supervising with a casual teacher, Mr Muraffa. Ms Consalvo stated that as a careers advisor, she had some interaction with DJ prior to the date of the accident, and she could recall at some stage organising work experience with him to help him get a school based apprenticeship. [100] She described herself as having a good rapport with him at most times. [101] She stated that DJ stood out because he was big, but described him as "just a normal kid". [102] She stated that there was or may have been some behaviour issues in the 18 months – 2 years prior to March of 2012 involving DJ, but she could not recall any major ones. [103] 3. Ms Consalvo conceded that with the student group, some participated in activities and some sat around chatting. [104] She stated that the students were playing and kicking the ball of the lower oval below the hall, but she could not recall whether they were using temporary goal posts or not. [105] She stated that she did not recall being approached by the Plaintiff in respect of a complaint of DJ. [106] She did recall the Plaintiff being struck; [107] however, she had difficulty recalling the ball. [108] She stated that at the time she was standing on the rise or near the hall. [109] She recalled that the students as being half way across the pitch. [110] So far as the Plaintiff was concerned, her vague recollection was that she was talking to a teacher's aide, Ms Jenny Bassan, and that she was off to the side of her and Mr Muraffa. [111] She accepted that there were other teachers other than her and Mr Muraffa present. [112] She recalled the immediate aftermath of the Plaintiff being struck, that other persons came to her assistance and she wasn't that close. She stated that it was a long time ago, but that other people were there and taking the Plaintiff to the office, and that she had to wait and supervise the children until the bell went before they could let them go. In the immediate aftermath of the incident, she recalled seeing DJ. While she was not good with metres, she would estimate that he was close to the centre of the oval concerned, which she described as "a fair distance." [113] 4. Ms Consalvo stated that she wrote a report on the request of the Deputy Principal. That statement was tendered as Exhibit 1 and records as follows:- While at sport on Tuesday 27th March Gabby was hit on the head with a soccer ball. The ball came from the lower field and landed on top of her head. Gabby was shaken and said it hurt and her neck felt the impact. It was an accident. [114] 1. In cross-examination, it was put to Ms Consalvo that the incident was not an accident. She disagreed. [115] It was also put to her that at the time of the accident, the Plaintiff was not talking to Ms Bassan. She stated that she could not remember, and that her recollection was that she was but it was not clear. [116] Judith Anne Sims 1. Ms Sims stated that in her position, she knew DJ since his enrolment at the school. When asked whether there was anything about him in his time in Years 10 and 11 that had brought him to her attention, she stated that DJ was a student who made a difficult transition from primary school to high school and did require some support during his early years at school. If she were to look at the documentary evidence, in particular until Year 11 and in the weeks prior to the accident, Ms Sims stated there were no recorded behaviour referrals or notifications that were made about DJ by any members of the teaching staff, any members via SLSO staff, any members via the ancillary staff within the school, nor any behaviour incident for him until the time he left at the end of Year 12. The only recorded incident related to a failure to hand in and complete assignment and assessment activity, and to complete course work. [117] 2. Ms Sims stated that following the incident, she did ask for some enquiries to be made by others, and there was an investigation undertaken by the Deputy Principal of the school. [118] She stated that the records show that DJ was not suspended from the school. [119] 3. Ms Sims stated that in 2012 there was a policy issued by the Department of Education, which included a policy on suspension, which was binding on all schools. It made provisions for what are known as short suspensions, which was a suspension from between one and four calendar school days, and longer suspensions, which was between five and up to 20 school days. The purpose of suspension was not punitive, but was to enable the school to work with students and their families to resolve an issue of concern. [120] 4. In cross-examination, Ms Sims accepted that the document described as the "Pendle Hill School Anti-Bullying Plan" [121] was the policy as at February 2012. [122] 5. That policy describes bullying behaviour as including verbal, physical, social, psychological and cyber bullying. [123] Responses following reporting were listed as including:- * Mediation/resolution; * Counsellor referral; * Inclusion in resiliency/anger management program; * Organise a buddy/mentor to support student; * Begin a formal monitoring program for a set period of time; * Refer to Deputy Principal or Principal for possible formal warning of suspension or suspension. [124] 1. In respect of the document described as "2013 PDHPE Department Faculty Handbook", [125] Ms Sims stated that that would have had minor changes from one year to the next. She stated that by in large other than those minor changes, the Faculty Handbook would have applied to 2012. [126] 2. That PDHPE Faculty Handbook relevantly provided:- 1. "Student welfare is the responsibility of every faculty member" [127] 2. "It is the responsibility of the teacher to ensure that their class is adequately supervised from 'bell to bell' for every lesson"; [128] 3. "Teachers should not leave their class unsupervised at any time during the lesson. Safety is a prime concern…" [129] 4. "When a student fails to respond to performance strategies and continues to be a non-productive, disruptive member of the class, they will be sent (with relevant work) to HT for that lesson (Faculty Withdrawal." [130] 1. With reference to the document titled "Student Handbook", [131] (the 2015 version), Ms Sims stated that it was reasonably consistent throughout the years; however she acknowledged there had been significant changes since 2015. [132] 2. That Handbook relevantly stated under the heading "Student Welfare", that there was:- • A strong anti-bullying policy, actively enforced … • Clear and explicit consequences for disruptive behaviour in the classroom and in the playground [133] 1. Under the heading "Student Behaviour" the Handbook stated:- • We believe that all students and teachers have the right to be treated fairly and with dignity, in an environment free from disruption, intimidation, harassment and discrimination. … • It is expected students will behave in a manner that will bring credit to themselves, their families, their school and community… … • Non-compliant students may be given detention… [134] 1. The Handbook also contained a heading "Bullying… No way", where it stated that "At our school bullying is not acceptable". [135] What was expected was then detailed. 2. Ms Sims acknowledged that in 2012 there were student welfare components which stated that the school had a strong anti-bullying policy which was actively enforced and there were explicit consequences for disruptive behaviour that would be applicable in 2012. [136] Ms Sims accepted that in respect of student behaviour, there would have been something along the lines that the school believed that all students and teachers had the right to be treated fairly and with dignity and in an environment free from disruption, intimidation, harassment and discrimination. [137] She further accepted that as a general principle that students were expected to behave in a manner that would bring credit to them. [138] Further, that bullying was not tolerated at school, and if it came to the attention of a teacher action would need to follow. [139] 3. Ms Sims described bullying as generally a longer term action on the part of someone, usually related to an individual or small group of individuals. [140] She described that what occurred in relation to the incident in 2012 was more in the nature of conflict. [141] She stated that whether or not it involved bullying or whether it was a one off situation of conflict, there would need to be some kind of appropriate response and intervention. [142] She accepted that an appropriate response might be, "Come over here, sit down for a while to calm down," [143] or be referred to the head teacher or, in the case of sports, the sports coordinator. [144] Ms Sims stated that in a sports situation where a person causing a conflict was overheard swearing loudly by either an adult or other children, the expectation would be that there would been a range of referrals made which would be documented and form part of the school's incident reporting system. There could be instances where there weren't such referrals, which could be because the matter was dealt with in a variety of ways on the field. If this was the case, Ms Sims stated she would expect that there would be a documented referral which would be picked up and followed through by the Deputy Principal or the Head Teacher concerned, so that somebody would make a notation about the incident. [145] She accepted that if the actions of one person were to be considered bullying, that would require some intervention. [146] 4. In re-examination, Ms Sims described a "referral" as a written notification that was logged in the school's welfare and wellbeing computer system to alert staff to the fact that something had happened that needed to be dealt with. She described it as a process that would usually occur after the event. In terms of sport on a Tuesday, there was a slightly different process in that there were sporting groups in various locations around the school and off site, where students were involved in competition or recreation sport. The sports coordinator would organise the sport and move around between sport groups to give an opportunity for immediate intervention if there was an issue of concern. [147] Ms Sims reiterated that bullying was generally regarded to be ongoing and more than one incident or issue. She said that it involved repeated behaviour. Conflict was described of more of a one-off situation, which was spontaneous and not premeditated. She stated that the intervention would depend on the nature of the conflict, but generally speaking, when there is conflict between students or a conflict between staff it was usually settled by some kind of meditation process. [148] Plaintiff's Expert Witness Sharon Todd 1. In her report dated 29 July 2017 Ms Todd stated under the heading "Assumed Facts," that she was instructed to assume inter alia:- Pendle Hill High School was a school where poor discipline and frequent bad language from students was commonplace. There were no repercussions implemented for students when they spoke rudely or swore at teachers or refused to undertake activities. [149] 1. Under the heading "Weekly Sport", Ms Todd obtained a history as follows:- A Year 11 student known to the Plaintiff as (DJ) who was a good sportsman was playing as goal defence. During the game, (DJ) called (ME) a "fucking cunt" when (ME) scored a goal. (DJ) was also abusing other children throughout the game. The teachers who were seated a distance from the field, up under the tree talking, did not respond to the offensive language, and did not discipline (DJ) regarding his bullying behaviour directed towards (ME). The Plaintiff was aware that (ME) had problems with aggressive behaviour, so she spoke to (DJ) directly about his poor language. (DJ)'s response to the Plaintiff was simply, "Fuck off." The teachers who were seated a distance from the field, under the tree talking, did not respond to (DJ)'s offensive language directed at the Plaintiff when she reprimanded him. The Plaintiff is of the opinion that if the teachers had been supervising the game they would have been aware of (DJ)'s offensive language and bullying behaviours directed towards (ME) and herself. (ME) continued to play on the field for another 20 mins. The Plaintiff remained near the filed [sic]. (DJ) was annoyed and angry at the Plaintiff for the remainder of the time that (ME) was on the field. He gave the Plaintiff several dirty looks and appeared to be very angry. The Plaintiff ignored him. After approximately 20 minutes (ME) said, "I've had enough" and he wanted out. The Plaintiff was encouraging (ME) to play, however (ME) needed time to process and left the field. (ME) became agitated at (DJ)'s bullying behaviours and abusive language and left the field. He began pacing up and down a flight of stairs nearby the field. The Plaintiff continued to watch (ME) whilst the other students on the field stopped playing a formal soccer game. (DJ) remained on the field, and was kicking the ball around with several other students. A short time possibly 10-15 mins after the Plaintiff had left the field order to supervise (ME), and according to student witnesses, (DJ) moved to the edge of the field and intentionally kicked the ball towards the Plaintiff who had her back to the field. The soccer ball hit the Plaintiff with force in the back of the head, knocking her to her knees. (DJ) then ran off. The teachers in the nearby area who were seated under the trees talking did not appear to notice what had happened and did not respond to the Plaintiff; however, the students immediately attended to the Plaintiff to see if she was injured, and to inform her that it was (DJ) who had intentionally kicked the ball at her. (DJ) is alleged to have said "You should have ducked." [150] 1. Under the heading "Statement of Ida Consalvo dated 14 May 2015", Ms Todd stated:- I note that in Ms Consalvo's statement, at Paragraph 14, she stated the Plaintiff was working as an aide and rostered to work with particular students on the day, however she does not remember which student the Plaintiff was allocated to be supporting. In Paragraph 15, Ms Consalvo states, "Our role was to supervise the students and keep score." In Paragraph 16, Ms Consalvo states, "I don't remember the time, but I do recall Charlie, Gabby and I were standing in a group near a large tree on the bank, near the back of the hall, watching the students play while we chatted. I estimate the students were playing on the field about 30-40 metres away from where we were standing." In Paragraph 17 of Ms Consalvo's statement she states, "I remember we were talking and everything was going along as normal. Then all of a sudden, I saw a soccer ball fly through the air, across the field and towards Charlie, Gabriel and me standing on the bank. The ball hit Gabby on the head but I don't recall exactly which part." [151] 1. Under the heading "Statement of Judith Sims", Ms Todd makes reference to paragraph 35 of the statement, which refers to the school policies and procedures for the conduct of sport, maintenance of discipline and the school's anti-bullying policy. [152] Referring to paragraph 48 of Ms Sims' statement, Ms Todd records:- "It is acknowledged that Gabby was accidentally hit by a soccer ball kicked by a student. Witness reports indicate that Gabby was standing with two members of the teaching staff close to a tree, some 30 metres away from where the students were playing and from where the ball was kicked. There is no available evidence to suggest the incident had malicious intent to cause injury specifically to Gabby." [153] 1. Further in her report, Ms Todd describes the Pendle Hill High School Student Handbook, which contained an anti-bullying plan in Annexure 18. She records that the document is undated and it is unknown if this document was available in its current form at the material time. The February 2012 version of the plan was contained in the Plaintiff's tender bundle. [154] Relevantly, both the 2012 version and the version inspected by Ms Todd defined bullying as follows:- Bullying is the intentional and ongoing harm or hurting of a person and/or their belongings by a more powerful person or group of persons. Bullying: • devalues, isolates and frightens; • affects and individual's ability to achieve their potential; • often affects school attendance; • has long term effects on those involved. [155] 1. Ms Todd further recorded the response to incidents in the policy, which included those referred to at [45] above. [156] 2. Ms Todd also recorded that the Student Handbook stated:- At Our School Bullying Is Not Acceptable! • You have the right to feel safe and happy at our school. • We expect all students to treat each other fairly and with respect. • We have a strong Anti-bullying policy that we expect all students and staff to follow. • Students who report bullying incidents will be supported by the Year Adviser and School Counsellor • Students who try to bully others will be given formal warnings and will be involved in a bullying resolution program. Repeated incidents of bullying may lead to suspension from our school. Stopping Bullying Starts With You! • Treat everyone with respect and take responsibility for your words and actions • Understand that saying things that are "put downs" hurts others. • There is information provided for students on what can be done if someone tries to bully them. [157] 1. Ms Todd records:- a. No teachers supervising the subject sports day intervened to manage (DJ)'s behaviour on the field in accordance with this anti-bullying guideline when the ball was kicked and connected with the Plaintiff's head. b. The Plaintiff is unaware of any formal discipline or warning issues to (DJ) for his offensive language and bullying behaviours observed just prior to the material time. c. The Plaintiff alleges that swearing at students was commonplace and an accepted practice despite these policies or procedures. [158] 1. In her report, Ms Todd also referred to the Guide to Preventing and Responding to Bullying and Harassment, produced by SafeWork Australia. Noting that while this was not published until 2013, she recorded that it referred to the Defendant's obligations to the Plaintiff under the Work, Health and Safety Act 2011 (NSW) for the safety of the Plaintiff and students. Specifically, she recorded the relevant definitions as follows:- Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety. Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time. Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening. Examples of behaviour, whether intentional or unintentional, that may be considered to be workplace bullying if they are repeated, unreasonable and create a risk to health and safety include but are not limited to: • abusive, insulting or offensive language or comments • unjustified criticism or complaints • deliberately excluding someone from workplace activities • withholding information that is vital for effective work performance • setting unreasonable timelines or constantly changing deadlines • setting tasks that are unreasonably below or beyond a person's skill level • denying access to information, supervision, consultation or resources to the detriment of the worker • spreading misinformation or malicious rumours • changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers. A single incident of unreasonable behaviour is not considered to be workplace bullying, however it may have the potential to escalate and should not be ignored. If workplace bullying behaviour involves violence, for example physical assault or the threat of physical assault, it should be reported to the police. [159] 1. Under the heading of "Violence in the Workplace" Ms Todd referred to a fact sheet by WorkCover NSW, before concluding that the ways to control the risks of workplace violence include:- * Providing a secure work environment; * Removing any incentive for violence; * Training and supervising staff; and * Changing work processes. [160] 1. She opined that this extends to the training and supervising of students in their behaviours to other students, teachers and staff, such as the Plaintiff. Further, that a student or students exhibiting abusive or bullying behaviours at the time of a sporting event should have been disciplined according to the subject school's policies and procedures for the management of bullying and such behaviours. [161] 2. By reference to the WorkCover NSW Guide 2002, Ms Todd opined that the school was accountable for developing and effectively implementing preventative strategies in accordance with the resources and national frameworks available to the subject school at the material times. She further stated that aggressive behaviours are a form of violence and that the subject school had an obligation to develop preventative measures for the prevention of violence and a system to monitor and ensure they were working. [162] Risk control options which were identified were:- * Clear procedures for management of bullying; * Discipline of bullies and support of bullied employees; * Re-organise work; * Team building; and * Improve client information. [163] 1. Ms Todd opined that repeatedly ignoring abusive language and aggressive behaviour was not risk control and risk control in this context included the discipline of bullies. She stated that DJ was behaving like a bully prior to the material time and it was reasonable to assume that his behaviour could have been controlled by the effective supervision from the teaching staff near the area. [164] 2. Apart from the aforementioned resources, Ms Todd also referred to other resources available to the Defendant at the time relating to bullying and the need to take effective action, being:- 1. Australian Human Rights Commission (December 2004) – Fact Sheet – Workplace Bullying [165] 2. Taking Action, Keeping Safe – A Resource for Student Leaders to Counter Bullying – Department of Education & Training (2005) [166] 3. Bullying in Schools and the National Safety School Framework – Rigby (2005) [167] 4. Bullying: A Whole School Approach – Suckling & Temple (2001) [168] 5. Effective Anti-Bullying Programs in Schools by Dr Keith Tronc, published in the Australian Education Leader Magazine in 2006 [169] 1. Ms Todd opined that had the teachers effectively been supervising that game, they would have been aware of the offensive language and reprimanded DJ for his language and poor behaviour when the ball connected with the Plaintiff's head. She stated that the failure to reprimand DJ for his language or the ball incident suggested an acceptance of abusive language and poor behaviour in the school and suggested that they were not effectively supervising the subject sporting game at the material time. Had the teachers been effectively supervising the game, they would have been aware of DJ's activities on the field and responded to his actions immediately. In particular, a response to DJ regarding the language directed at the Plaintiff could have minimised the likelihood of DJ kicking the ball in the direction of the Plaintiff where it was intentional. [170] 2. In conclusion, Ms Todd stated that having considered the systems of work at the material time and considering the elements of an effective Work Health and Safety System in accordance with the relevant Australian Standards, she was of the opinion that the system for the management of violence and bullying during the subject sporting event was not effectively supervised and implemented according to the Defendant's policies and procedures. In particular, the subject teachers did not discipline or intervene when abusive language behaviours were demonstrated by DJ to other students and the Plaintiff on the field at the material time. She stated that at no time did the teachers who were allegedly supervising the game intervene to discipline the subject student according to the school's policies and procedures for the management of this type of behaviour. [171] Ms Todd concluded that the resources available to the Defendant indicated that the behaviours being exhibited required diligent controls to minimise their escalation and acceptance. She proceeded to state:- It would have been reasonable response [sic] for the Defendant to have implemented a combination of reasonable alternatives to obviate the risk of injury to the Plaintiff at the material time. A combination of reasonable and cost-effective controls and alternatives available to the subject school at the material time included the following:- a. Regular internal audits of the Work Health and Safety Management System and the effectiveness of risk management actions undertaken to ensure that risks are identified and managed appropriately on an ongoing basis (AS/NZS 4801:2001). b. A thorough investigation of the event by the school, interviewing (DJ) and all witnesses including students and a RISC Report. c. Diligent sporting supervision by teaching staff. d. The immediate discipline of (DJ) in accordance with the subject school's operational policies and procedures for bullying and violence in the school. e. The ongoing monitoring of the effectiveness of the subjects school's anti-violence and bullying policies and procedures. f. The effective training of teachers and other staff to identify abusive bullying behaviours and to respond according to the subject school's operational policies and procedures. [172] 1. In the course of cross-examination, Ms Todd stated referable to the definition of bullying referred to in the SafeWork Australia Guide to Preventing and Responding to Bullying and Harassment 2013, she considered the behaviour of DJ happened more than once and was therefore repeated. She observed that it occurred towards ME and also towards the Plaintiff afterwards and then throughout the game which she considered to be over a period of time. [173] She stated that her understanding was there was abuse being directed towards ME and subsequently to other children throughout the game. [174] 2. Ms Todd stated:- So you're, you're preparing a system of work and you implement a system of, you implement a system of work for the risks that you consider are likely, I said that. Then what you do is implement the controls that are to manage those risks before it happens and those controls include determining obviously what you are going to do when unreasonable behaviour appears, and, and then how and or who that's going to, how that's going to be managed. And given that this is a regular sport day and sport happens every week, I consider that it would've been quite reasonable for teachers to have had student who may have been unreasonable or upset at other times and that they would have a system in place to manage that. [175] 1. Ms Todd was then asked about circumstances where there was no evidence that DJ had ever done anything like this before, where the child the Plaintiff was supervising had come off the field, and there had been other language directed at other students around the time, but for around an hour there had been no direct contact between the Plaintiff and DJ, and furthermore, where the Plaintiff was aware of some swearing going on and did not know whether or not it was directed at her. Ms Todd was asked whether in those circumstances, teachers who were supervising students would have taken DJ from the field and had him sit somewhere where he didn't present a danger. [176] Ms Todd responded that she did not state that in her report. However, in her opinion, if the school were to have a robust system in place for the management of bullying and harassment in the school and unreasonable behaviours they needed to determine what they were going to do with DJ. [177] She subsequently stated that a child who swears at another player was in her view being abusive and bullying, and if you remove the child from the field they could not "pot shot" the ball to anyone. [178] In questioning whether she was qualified to give evidence and an opinion on how children should be supervised, Ms Todd stated that she was not, however she was qualified to offer an opinion on systems of work. In particular, she drew attention to paragraph 2 of her report, where she describes ergonomics as follows:- Ergonomics is a field of specialised knowledge. The International Ergonomics Association states that: "Ergonomics (or human factors) is the scientific discipline concerned with the understanding of the interactions among humans and other elements of a system, and the profession that applies theory, principles, data and methods to design in order to optimise human well-being and overall system performance. NOTE: The terms 'ergonomics' and 'human factors' are used interchangeably." [179] Submissions on Liability Plaintiff 1. In submissions, Counsel for the Plaintiff's drew attention to the lack of challenge to much of the Plaintiff's account as to what she said occurred relating to the conduct of DJ. 2. Specifically, the Plaintiff's Counsel drew attention to the failure of the Defendant to challenge the Plaintiff as to there being the teachers who were not actively supervising what was occurring and were merely being present. [180] The Plaintiff submitted that Ms Consalvo did not give evidence of engaging in supervision of the students in the sports session such that the Plaintiff's account should be accepted, particularly in circumstances where Mr Muraffa was not called. It was contended that based upon the evidence of Ms Todd that there was a failure on the part of the supervising teachers to supervise the sports session properly either through a failure to implement the school's policies or the school failure to provide sufficient instruction or training in when and how to implement policies. [181] 3. The Plaintiff argued that the clear inference was that the Court should determine that the actions of DJ kicking the ball at or near the Plaintiff were deliberate. It drew attention to the fact that it occurred within a short space of time of the Plaintiff remonstrating his actions and words to younger students and DJ responding and telling her to "fuck off." It was argued that whether he kicked the soccer ball meaning to strike the Plaintiff was not clear; although the intention of kicking it towards or near the Plaintiff was confirmed by the use of the phrase "you should have ducked." It was submitted that a soccer ball striking a person will cause injury the extent of which depends on the level of force. [182] 4. The Plaintiff alternatively submitted that DJ acted with reckless indifference when kicking as to whether the ball struck the Plaintiff or not. [183] 5. The Plaintiff contended that any submission that it was an accident should not succeed as, for this to be established, it would be necessary to call DJ as the explanation could only come from him. It was argued that the fact that he was not called without explanation would result in the Court drawing an inference pursuant to Jones v Dunkel [184] by more readily in the Plaintiff's favour. [185] 6. The Plaintiff further submitted that the supervising teachers owed a duty of care to the Plaintiff and that their negligence resulted in injury to the Plaintiff, whether or not the child who directly caused the injury was negligent. Relying on Haines v Rytmeister, [186] the Plaintiff contended that the Plaintiff's injury occurred in circumstances where the Defendant's employees ought to have exercised care and supervision of the children and here they failed to adequately supervise and control the actions of DJ both prior to and at the time of the Plaintiff's injury. [187] In addition, had there been appropriate supervision DJ would have, or at least should have, been removed from the sports session at the time he bullied the year 7 students, or at the latest when the teachers were told about it by the Plaintiff. It was contended that had DJ been removed from the sports session then the Plaintiff would not have been injured. [188] Defendant 1. The Defendant conceded that a duty existed as a result of the employment relationship, and there was no doubt the Plaintiff suffered the injury at work. [189] The Defendant submitted that the Plaintiff could not establish that the actions of DJ were intentional or reckless. 2. The submission was advanced as follows: MORGAN: My friend, in his submissions, suggests it's 40 minutes, but the evidence clearly establishes - in the oral evidence, the plaintiff concedes, ultimately, that the period was about an hour. That is a critical consideration when your Honour comes to considering a critical element in this case from the plaintiff's point of view, and where the plaintiff must fail, is foreseeability. How does one foresee that a child who had a confrontation with another child during the course of a kick around of soccer balls, was likely, or more likely than not, to either seek to intentionally injure the member of staff who'd spoken to him an hour earlier, or alternatively, would engage in reckless behaviour which would result in the injury being suffered by a member of staff? If my friend was able to point to a history of such conduct on the part of this particular student, if my friend was able to point a course of conduct over the next hour, which suggested that violence or physical confrontation was likely, be that either intentionally or, alternatively, as I submitted before the break, by a series of tirades, language, threats directed at the plaintiff, balls being kicked in her general direction and no action is taken with respect to that conduct by the teachers in question, then my friend might have a more reasonable argument with respect to matters going to foreseeability. [190] 1. The Defendant submitted that to the extent that DJ continued to swear after being approached by the Plaintiff, the evidence did not establish that it was directed to her. [191] 2. The Defendant submitted that if an incident occurred of the type described, there was no evidence that there was any action or activity on behalf of DJ after the initial episode to suggest that it was likely or foreseeable that he would intentionally be kicking a soccer ball directly at the Plaintiff with a view to injure her. [192] 3. Accepting without conceding the point that the Plaintiff had established breach, the Defendant further submitted that there was no evidence that breach resulted in injury. [193] 4. The Defendant submitted that the evidence of Ms Sims was that if a child was involved in bullying or a one off situation of conflict, there would need to be some kind of response and intervention which might consist of requesting the child to sit down for a while to calm down or be referred to the head teacher other sports coordinator. It contended that in this case there is no evidence from an educationalist or someone with appropriate experience to say what you would do. It submitted that in any event the evidence was that the child would be taken out for a period of time to let them calm down or reflect on the actions and then be let back in the game. [194] It stated:- How would it stop in an hour's child, a child - assuming the child did it intentionally, how does that action, taking the child out, having him sit down for a while to reflect on his actions before you reintroduce him to the game, how does that stop. This is the hurdle my friend is going to have to overcome. [195] 1. It was submitted that the injury was not foreseeable in the sense that DJ would do this. The Defendant submitted if such an action was foreseeable then "you would take him out of the game and not let him touch the ball." [196] Consideration on Liability 1. Whilst I found the Plaintiff broadly reliable, she at times made assertions from which she resiled under cross-examination. My general impression was that she had a strong sense of grievance which at times coloured her recollection of events. At one point in cross-examination it was observed by her own counsel that she was becoming quite agitated and "going white in the face." [197] 2. Having said that, much of the Plaintiff's account as to how she came to be injured was not in issue. Specifically, she was not challenged as to her account that DJ had been swearing to the other players including ME during sport. Nor was the Plaintiff challenged that when she approached him to advise him that that was not necessary she was told to "fuck off." Nor was the Plaintiff challenged as to her account that she was not allowed to discipline children that being the role of the teachers. 3. Ms Consalvo accepted that that she was "supervising" with Mr Muraffa and that continued after the Plaintiff's injury. A statement supplied to Ms Todd recorded that Ms Consalvo stated that their role was to supervise and keep the score. According to Ms Consalvo she viewed the ball strike the Plaintiff. The Plaintiff, furthermore, conceded that Mr Muraffa was yelling out occasionally. Beyond that the level of the supervision was not explored and it can be accepted that whilst undertaking their duties, both Ms Consalvo and Mr Muraffa were conversing. 4. Despite Ms Consalvo's evidence that she didn't recall being approached by the Plaintiff about a complaint about DJ, the Plaintiff was not challenged as to her account of reporting the matter to the two teachers on duty with neither responding or intervening. Whilst the Plaintiff's statement to Ms Todd did not refer to the reporting, Mr Muraffa was not called and his absence was not explained. Accordingly, I accept the Plaintiff's oral evidence in this respect. 5. The Plaintiff's evidence thereafter was that DJ continued swearing and at one stage she thought he was trying to engage her but added that she could be wrong and it mightn't have been at her. The Plaintiff's evidence in this respect was unclear and in her written statement [198] she did not identify evidence of any ongoing interaction let alone animosity by DJ towards her during the time period in question. On the balance of probabilities I cannot be satisfied that any swearing was directed at the Plaintiff after her attempted intervention. The Plaintiff had withdrawn after having been sworn at by DJ and did not engage with him. At that point the game continued with ME participating for a period. The Plaintiff had described her interaction with DJ as having been civil and not aggressive and her previous rapport was positive as far as she was concerned. She conceded that her initial perception relating to the swearing thereafter being directed at her could be wrong. 6. It is not in issue that the ball that struck the Plaintiff's head was kicked by DJ. 7. There was some dispute between the parties as to the length of time between the Plaintiff's interaction with DJ and her being struck. The Plaintiff's counsel submitted that it was "perhaps 40 minutes." [199] The Defendant submitted it was more than an hour based on the Plaintiff's evidence. [200] The Plaintiff's evidence would have placed the confrontation at around 1.40pm, some twenty minutes after the game started. This seems somewhat at odds with her evidence that the confrontation occurred early in the game because "the first attempt was a goal". Leaving that aside the Plaintiff's oral evidence was that the striking occurred after 2.30pm. According to her Workers' Compensation Claim form, it occurred at 2.40pm. That makes the approximate time interval at least one hour, which the Plaintiff accepted in proximate terms, adding that it was most probably more an hour and "a significant time" after the initial confrontation. 8. In the circumstances I accept the Defendant's submission as to the time interval. 9. When first asked as to whether the teachers supervising DJ should have taken DJ from the field and had him sit somewhere where he did not present a danger to any one, Ms Todd stated that she had not stated that in her report. [201] In fact her report referred instead to reprimanding DJ. In oral evidence, Ms Todd stated that she considered swearing at people intentionally to intimidate or victimise or humiliate as bullying, adding that she believed that the school should have had a system which they were responsible for devising where they determine what they are going to do with DJ. [202] 10. In her report, Ms Todd accepted that the school had operational policies and procedures for bullying and violence. When asked in cross-examination how it would have stopped DJ from intentionally kicking a ball at a teacher who was not looking, Ms Todd acknowledged that the policies and procedures gave arrange of options of intervention. However, she was critical of the fact that the Defendant had not enacted the policy or system of work to manage DJ at the time. When it was put to Ms Todd that it would not have made any difference, she responded, "If you remove someone from the field, he can't pot shot anyone." [203] When Ms Todd was questioned as to whether a child would be taken off a field during the course of a game because he swears at another player she responded, "In my opinion he is being abusive." [204] Ms Todd, however, accepted that she was not an educator and did not provide an opinion on how children should have been supervised. 11. The question as to whether the school failed to provide sufficient instruction or training as to how to implement its policies was not explored in the cross-examination of either Ms Consalvo or Ms Sims nor advanced in submissions. 12. Whilst Ms Todd's expertise as a systems expert is acknowledged, I do not accept that she is qualified to explain the decisions that ought to have followed had schools policies and procedures been followed bearing in mind the circumstances. Much of her report was based on assumptions not borne out by the evidence. When revised assumptions to those she was briefed with were put to her in cross-examination, she conceded that the school needed to determine what to do with DJ. [205] Overall, I prefer Ms Sims' evidence that what occurred on the occasion in question was one better described as a conflict involving DJ. In any event it was of a limited duration. Whilst Ms Sims accepts that intervention was required, she only goes so far as to suggest that the child be asked to sit down for a while to calm down or be referred to the head teacher or, in the case of sports, the sports coordinator. It is not apparent that had the school policies and procedures been applied this would have led DJ to be removed for the balance of the sporting session. 13. I would accept that the Defendant, being vicariously liable for the actions of the two teachers, breached its duty of care by failing to supervise and intervene in accordance with the relevant policies. 14. I do not accept, however, that but for the breach DJ would have been removed for the balance of the sporting session such that he would not have been present to strike the ball that hit the Plaintiff. It is plain from the policies and the evidence of Ms Sims that a degree of judgment was required. [206] 15. For the Plaintiff to succeed it was necessary to establish that on the balance of probabilities the failure by the teachers to supervise and intervene to moderate DJ's behaviour was the cause of the Plaintiff being injured. 16. I would adopt the summary of legal principles relating to causation referred to in the somewhat analogous case of Carswell v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane. [207] 17. Specifically in Bennett v Minister of Community Welfare, [208] Gaudron J stated: …generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect,... or that the injury would have occurred even if the duty had been performed,…it will be taken that the breach of the common law duty caused or materially contributed to the injury. (case references omitted) 1. In Roads and Traffic Authority v Royal [209] Gummow, Hayne and Heydon JJ observed that her Honour's reasoning in Bennett v Minister of Community Welfare proceeded on the assumption that a chain of causation had been established. 2. Accepting that the injury needs to be within the area of foreseeable risk, the risk or added risk here was that given the circumstances, DJ was more likely to engage in anti-social behaviour or that there would be an escalation in an inappropriate and potentially anti-social behaviour. 3. The Plaintiff argued that the striking of the ball being intentional or reckless was a foreseeable consequence of the breach of duty. 4. The Plaintiff at the time she was struck was facing away from the oval and did not view the trajectory of the ball. Ms Consalvo described the striking of the Plaintiff as an accident. Whilst she was challenged in that assessment, she was not challenged in her observation that in the aftermath of the incident she recalled seeing DJ she would estimate that he was close to the centre of the oval concerned describing this as "a fair distance." [210] Ms Todd noted that Ms Consalvo's statement recorded a distance of 30 to 40 metres distance. [211] 5. The account referred to in Ms Todd's report as to DJ being annoyed and angry at the Plaintiff for the remainder of the time that ME was on the field and giving the Plaintiff several dirty looks was not advanced in oral evidence or submissions. Instead, the Plaintiff's submission was that an inference should be drawn that the conduct of DJ in striking the ball towards the Plaintiff was intentional or reckless. [212] 6. In Re Day, [213] Gordon J summarised the principles relevant to a tribunal of fact drawing an inference stating at [18]: [18] The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. Where direct proof is not available and satisfaction of the civil standard depends on inference, "there must be something more than mere conjecture, guesswork or surmise" – there must be more than "conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture". An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed. (footnotes omitted) 1. In Henderson v State of Queensland, [214] Gaegler J addressed the burden of proof as follows: "[89] Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel: "One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed." 1. In this instance, the Plaintiff has drawn attention to the remarks addressed to the Plaintiff after the striking being that "you should have ducked' as well as the proximity to her remonstrating over his conduct. Those words, however, are not indicative one way or the other as to the circumstances in which he struck the ball. The time lapse between the interaction and the injury was over an hour. I am not satisfied that in that time DJ, in whatever he was doing, was exhibiting any animosity to the Plaintiff. To the extent he was swearing I am not satisfied that it was directed to the Plaintiff for reasons earlier described. The Plaintiff at one point described it as "normal swearing that goes on." The position of DJ at around the time of the striking as seen by Ms Consalvo was but described as "close to the centre of the oval" and "a fair distance". There was no evidence that in kicking the ball he deliberately aimed for the Plaintiff or that he acted recklessly. 2. Whilst the Plaintiff gave evidence of DJ being a fit boy who played first grade for Wenty Leagues, I am not satisfied that that description is accurate. When cross-examined the Plaintiff stepped back from this assertion stating that that is what she had been told by DJ the previous year and that she meant he was playing first grade for his age in his year. The Plaintiff also gave evidence that children who had any talent for sport would be put in organised games such as representing the school rather that the sports session in question. [215] 3. On the evidence, I am satisfied that DJ was a student who generally had a good rapport both with the Plaintiff and Ms Consalvo. The Plaintiff gave evidence that in the lead up to 27 March 2012 DJ was never physical or aggressive towards staff or students. I accept Ms Sims' evidence that DJ had no recorded behaviour referrals or notifications in the weeks leading to the incident and up until his departure in Year 12. As Principal I consider that Ms Sims was well placed to have knowledge as to DJ's overall conduct. She impressed me as being straightforward and reliable. 4. Overall in considering the likely character of the occurrence as the Plaintiff submitted, it has not been demonstrated that the competing characterisation being that of an accident is less likely. [216] Nor does the failure of the Defendant to call DJ advance the Plaintiff's claim in the absence of facts which positively suggests, or provides a reason in the circumstances particular to the case, that the specific event happened as contended. [217] 5. Accordingly I am not satisfied that the identified risk eventuated. 6. Haines v Rytmeister [218] is distinguishable on causation. Its facts involved children age 12 described as young and boisterous quickly laying down boxes without instruction leading to a jamming of the Plaintiff's hand. 7. It follows that the Plaintiff has not discharged her onus of proving that breach of duty was a material cause of the harm she suffered. 8. I proceed to consider damages in the event that I am wrong. DAMAGES Treatment 1. Following the accident, the Plaintiff said that "the girls" led her up past the hall and she went straight to the office to report the incident to Ms Barton, the Student Administration Officer. [219] She was then given a pamphlet book with details on what she needed to do from another assistant who she described as "Lyn". [220] Thereafter, she went home and attended on her General Practitioner, Dr Karen Hunt, who referred her for x-rays and prescribed Panadeine Forte. [221] Dr Hunt's clinical notes record a history as follows:- Hit on top of head by football at about 2.45 pm. Felt neck crack. muscles in neck and back getting more painful and tighter. Feels nauseated with vertigo when moves. [222] 1. The Plaintiff described herself as feeling worse, and couldn't keep her head up and had bad headaches. [223] At that point she took Panadeine. [224] She also described that she may have been on Nurofen, Voltaren tablets and cream, and Panadol. [225] Subsequent to that, she made a claim for workers compensation. An x-ray of the cervical spine obtained on 28 March 2012 recorded:- 1. No fracture 2. Focal degenerative change at C5/6 without bony foraminal stenosis [226] 1. On 29 March 2012 the Plaintiff was seen again by Dr Hunt who obtains a history as follows:- A bit better, still has neck pain and pressure behind right eye. [227] 1. On 2 April 2012 Dr Hunt recorded that there was still neck spasm and tenderness at T8. [228] The Plaintiff was referred for physiotherapy. According to a report of Mr Nicholas Pilkington, physiotherapist:- Gabriel presented to our clinic on the 2nd of April, one week after getting hit in the back of the head by a soccer ball at work. She had strong head and neck pain as well as dramatically limited flexion and extension of the upper cervical spine. After a few sessions of cervical mobilizations we were able to improve the range of motion in the neck. However her neck pain and headache were slower to resolve. As her symptoms were resolving slower than her function she was sent for a CT scan which showed some vertebral degeneration and a C5 disc bulge. We continued treatment focusing on upper and middle cervical spine for several weeks with a steady progress. [229] 1. On 7 April 2012, Dr Hunt recorded that the Plaintiff was improving. [230] On 19 April, Dr Hunt recorded that the Plaintiff was getting better and a return to suitable duties was recommended. [231] On 24 April 2012, Dr Hunt recorded that the Plaintiff was feeling worse. She noted that the Plaintiff was sitting at meetings the previous day and "became more dizzy, headache as the day went on, feeling the same today." A CT of the brain and cervical spine was ordered. [232] On 26 April 2012, Dr David Boshell recorded the results as follows:- 1. No acute intracranial pathology identified. 2. Localised degenerative change at the C5/6 disc level with associated mild broad based posterior disc bulge, and mild posterior disc protrusion at C6/7 [233] 1. On 26 April 2012, the Plaintiff was also referred for a Regain Rehabilitation assessment at the request of Allianz TMF. That assessment took place on 4 May 2012 and a report was prepared dated 8 May 2012. [234] The report noted that the Plaintiff was certified as unfit for work until 5 May 2012, when she was reviewed by her nominated treating doctor on 4 May 2012 and upgraded to fitness for suitable duties, three hours per day, three days per week up until 2 June 2012, with restrictions that included:- * No lifting more than five kilograms * No working with students in wheelchairs * Sitting and standing to be limited to 20 minutes * Frequent change of position * Avoid activities that require a lot of physical assistance. [235] 1. This appears consistent with Dr Hunt's recording in notes of a consultation of 4 May 2012. [236] 2. The Regain Report noted that a further meeting was completed at the worksite on 8 May 2012, where it was agreed with the Principal that the school could provide suitable duties in line with the medical restrictions such that the Plaintiff could recommence on 9 May 2012. [237] 3. The Report recorded that the Plaintiff complained of ongoing dizziness and pain in her neck, shoulder and upper back. In this respect, it was noted that the Plaintiff would continue with physiotherapy and reviews by Dr Hunt. [238] A suitable duties plan was prepared and signed by both the Plaintiff and the School Principal, Ms Sims. This was to commence on 9 May 2012. [239] The Report of Regain Rehabilitation documents report that the Plaintiff commenced work three hours a day for three days a week from 10 May 2012. [240] The Plaintiff's evidence, however, was that she recommenced work on two hours and that they got up to three hours a day for two days and then went to three days. [241] She stated that she found it difficult and her condition appeared to deteriorate. [242] The clinical notes of the family practice the Plaintiff was attending confirm that the Plaintiff was seen by Dr Davis Ding on 23 May 2012 who noted that she was going well and upgraded hours for one week prior to another review. [243] On 2 June 2012 however, the Plaintiff was recorded by Dr Hunt to be suffering "increased pain after working full time" and that her neck muscles "tire easily." [244] The Plaintiff stated that she was only able to attend work by attending physiotherapy on Thursday morning's after she completed three days of work. [245] 4. On 15 June 2012, Dr Hunt described the Plaintiff as suffering "still lots of muscle spasm and pain." Voltaren was prescribed. [246] On 5 July 2012, Dr Hunt prescribed Brevinor. [247] On 13 July 2012 the Plaintiff saw Dr Hunt again who noted that she was going OK until she drove to Orange. [248] 5. The evidence from Regain Report was that the Plaintiff was certified fit for her pre-injury duties and a certificate was issued on 20 July 2012. [249] Dr Hunt's notes, however, record that on 20 July 2012 the Plaintiff "wants to make it final as having difficulty with Rehab provider" and "has good and bad days." Voltaren was again prescribed. [250] 6. Thereafter the Regain Report notes that following a discussion with Dr Hunt on 23 July 2012, it was agreed that she would be issued with a progress-pre-injury certificate to enable the Plaintiff to complete a further six to eight physiotherapy sessions as recommended. [251] The Plaintiff took leave for a holiday on 17 August 2012 and returned on 27 August 2012. [252] On 30 August 2012 the Plaintiff saw Dr Hunt who recorded that she was "Better, though still has bad days." [253] 7. On 27 September 2012 the Plaintiff came to complete a Recurrence of Injury Form in which she reported that she had a recurrence of neck pain becoming significantly worse on 2 September 2012. She also reported that on 8 September 2012 she went to sit down and her neck popped and she couldn't move her neck. She describes ceasing work on 5 September 2012. [254] 8. There is a further recurrence of injury form dated 4 December 2012 that records the Plaintiff suffered a recurrence on 3 September 2012 performing normal duties that led to an escalation of neck pain and lack of mobility in the left arm. The Plaintiff indicated that she went off work on 12 September 2012. [255] The Plaintiff's oral evidence was that she wasn't able to see Dr Hunt until the Monday after the recurrence and instead she saw a chiropractor who couldn't do anything for her because of muscle spasms. [256] She stated that she went to the Norwest Private Hospital on 16 September 2012. Medical notes record that she had complaints of left neck and arm pain, and she was prescribed medication and referred for an MRI. [257] 9. The Plaintiff returned to see Dr Hunt on 17 September 2012, and noted symptoms of cervical nerve compression, showing disc C5 disc prolapse. Dr Hunt's clinical notes record an acute onset the previous day and that she had been getting "more stiff" with pain from neck into left arm. [258] Dr Hunt noted that there was no acute injury and the symptoms started doing routine activity. In the circumstances, Dr Hunt referred the Plaintiff to see Dr Hsu, neurosurgeon, on 24 September 2017 and made a referral for an MRI. [259] The MRI report prepared by Dr James Black dated 18 September 2012 recorded:- Chronic mild cervical disc degeneration; a more acute left sided disc protrusion present at L45 compromising the exiting C5 nerve. [260] 1. On 20 September 2012 the Plaintiff was prescribed Oxynorm and on 26 September 2012 she was prescribed Targin. [261] 2. Following consultation on 24 September 2012, Dr Hsu provided a detailed report to Dr Hunt following radiological studies. He opined that the Plaintiff demonstrated a C4-C5 disc herniation with significant foraminal stenosis and nerve root impingement. He recorded there was also a C5-C6 foraminal stenosis as well. He reported that these changes had been developing over the last two months and with progressive neurological deficit. He recommended a surgical intervention in the form of C4-C5, C5-C6 anterior cervical decompression. [262] 3. On 12 October 2012 the Plaintiff saw Dr Ihika Masud at her Family Practice who recorded that Targin helped with neck pain and Lyrica with pain in the arm. [263] On 31 October 2012 Dr Hunt recorded that the Plaintiff was to see a sports doctor. Dr Hunt recorded that she spoke to Dr Hsu who suggested a foraminal injection while waiting for surgery. Targin continued to be prescribed. [264] 4. The Plaintiff saw Dr Corey Cunningham Sports and Exercise Physician on 9 November 2012. Dr Cunningham opined:- Gabriel's pain relates to the C4/5 disc protrusion and left-sided nerve root radiculopathy, rather than the pre-existing degenerative changes seen on the original scan. It is most probable that the disc protrusion was triggered by the injury, given the history provided. I would suggest proceeding with a C4/5 outlet foramen injection and starting Endep 10mg, to help with the neuropathic component of her pain. As pain is better controlled then returning for further physio treatment is likely to be beneficial. [265] 1. Dr Hunt recorded in her notes of 20 November 2012 that the "injection didn't help." [266] 2. The Plaintiff underwent surgery in Norwest Private Hospital on 22 January 2013 for C4-C5, C5-C6 anterior cervical decompression and fusion. [267] 3. On 14 March 2013 she returned to see Dr Hsu 6 weeks after her surgery and was noted to be progressing well. She was reported as having some neck and shoulder pain and this was likely related to stiffness and the fact she had received cervical surgery. He planned to review her in 6 weeks' time for a new x-ray. Ultimately the Plaintiff was found by Dr Hsu to be fit to return to normal duties on 10 May 2013. [268] 4. On 16 May 2013 Dr Hsu wrote to Dr Hunt stating that whilst there had been some improvement in the neck, she was still experiencing left sided neck and shoulder pain. At that point, he arranged for the Plaintiff to undergo a cervical spine bone scan and a CT scan, noting that depending on the findings there may be a need to proceed to an MRI scan on the left shoulder to rule out any occult pathology. [269] The Plaintiff described that following the operation there was a big improvement in the nerve pain on her right arm and that she did return to work on 20 May 2013 at full capacity. [270] She described, however, that her hours were cut down, [271] and she returned for two days a week at 6.15 hours a day. [272] On average, she described herself as doing two days a week. 5. On 29 August 2013, Dr Hsu reviewed the MRI scan and stated:- Both studies were essentially normal. There may be some mild disc bulging at the level above her fusion, but I do not see any severe pathology. I would recommend she undergo an upper limb nerve conduction study to exclude peripheral nerve involvement that may explain her ongoing pins and needles. [273] 1. The Plaintiff described that she continued working at Pendle Hill High School until March 2015. She stated that during that time her workload increased with a new student who had started in 2014. [274] She stated that there was still some exacerbation of her pain as the operation did not relieve all of the pain. In particular, she described pain in her neck but not as severe that went down her left shoulder and down to her left arm to the finger tips like it had prior to the surgery. [275] 2. The Plaintiff in her statement said that during 2014 her condition was progressively getting worse. [276] On 16 May 2014 Dr Masud obtained a history that whilst at work a student took her chair whilst she was getting up and she jarred her neck in the process. She experienced sharp neck pain went home and rested before the pain became stable. The car ride to the surgery then exacerbated the pain. [277] On 17 May 2014 Dr Hunt referred the Plaintiff for physiotherapy which was noted on 22 May 2014 to have helped. [278] On 29 May 2014 Dr Hunt records that the Plaintiff was getting better and that she was to start on restricted duties the following week. [279] On 22 July 2014 the Plaintiff was recorded by Dr Hunt as having her neck the same and that she was coping with work but it flared up with lifting. [280] On 15 October 2014 the Plaintiff reported to Dr Hunt increasing pain and arm symptoms, and she noted that she had tingling down the right, with the left worse; although physiotherapy helped. Lyrica and Targin continued to be prescribed. [281] The Plaintiff further consulted Dr Hunt on 27 October 2014, 17 November 2014 and 18 December 2014 essentially for pain relief medication. [282] 3. The Plaintiff stated she looked forward to the term holidays to rest her neck. She recalled that during the Christmas break of 2014, she had little to no relief of pain. She stated that there were ongoing symptoms and numbness to both her arms, particularly the left arm, and was finding it difficult to do her job, such that by early March 2015 she had consulted Dr Hunt about these ongoing problems. [283] The practice clinical notes record that the Plaintiff saw Dr Keith Hamd on 9 March 2015 reporting severe pain and difficulty sleeping at night. Endone was prescribed for severe breakthrough pain. [284] On 18 March 2015 the Plaintiff saw Dr Hunt complaining of neck pain into the left arm. Dr Hunt issued a referral for an MRI scan which took place on 19 March 2015. [285] 4. The clinical history referred to in the MRI report by Dr Melvin Chew referred to radicular pain of left arm with "previous C4/5 decompression ? disc lesion." Dr Chew concluded:- Left-sided foraminal stenosis with left-sided foraminal disc bulging of C5/6 level with partial impingement of left C5 nerve root suspected. A CT-guided left C6 perineural injection may be performed as both a diagnostic and therapeutic procedure. [286] 1. Mention of a referral back to Dr Hsu is recorded in Dr Hunt's clinical notes of 26 March 2015 and the prescription for Targin was increased. [287] 2. The Plaintiff stated that as of one week after the scan, being 27 March 2015, she was certified totally unfit for work and remains unfit due to her neck injury. [288] 3. Dr Hunt recorded in her clinical notes of 17 April 2015 that the Plaintiff she still had pain but was better when not working and the pain "starts up with lifting etc." [289] 4. She stated that thereafter she went to go and see Dr Hsu again, who she didn't believe she had seen between 20 May 2013 and ceasing work in March 2015. [290] Dr Hsu saw the Plaintiff on 2 April 2015 and recorded- … The most recent MRI scan suggests that there is some cervical disc bulging at C6-7 with possibly some foraminal narrowing, however the dermatomal distribution of the symptoms do not correspond to a C7 radiculopathy only. The recent CT scan certainly demonstrates that the C4-5 intervertebral fusion is solid but it does raise the question whether the C5-6 disc space is solid. This could cause some degree of radicular pain if there is continued micromotion there as well. Initially, I have arranged for Mrs Moriarty to undergo a nerve conduction study to rule out any peripheral nerve involvement and we will proceed to a bone scan after this to ascertain if there is any osteoblastic action at the C5-6 disc. … [291] 1. The Plaintiff saw Dr Hunt again on 30 April and 18 May 2015. [292] 2. Dr Hsu reviewed the Plaintiff of 21 May 2015. In his report dated 28 May 2015, he stated that:- … Her nerve conduction study did not demonstrate significant left sided radicular pathology of peripheral nerve involvement. It demonstrated mild right sided carpal tunnel compression. We again reviewed the MRI scan of the cervical spine and it does demonstrate some C6-7 cervical disc bulging. However her symptoms are more likely related to C6 radiculopathy on the left side. I have arranged for her to undergo a bone scan with SPECT CT to assess for any bone turnover or activity at that level to confirm if there is a non union causing her current symptoms. I will keep you informed of her progress. … [293] 1. On 29 May 2015 the Plaintiff saw Dr Hunt who recorded that the Plaintiff had pain worse at night. An increased dosage of Lyrica was prescribed for the night. On 11 June 2015 the Plaintiff saw Dr Hunt who recorded that the pain was the same she could not cope with the increased Lyrica dosage. [294] 2. Dr Hsu next saw the Plaintiff on 25 June 2015, after the bone scan of the cervical spine. He reported:- … The bone scan demonstrates mild reactive changes around the cervical plate but no clear signs of a non union or any facet joint update. Her ongoing symptoms could be related to adjacent segment problem and I recommend that we trial a C3-4 right sided foraminal injection as the next step in the diagnosis of her ongoing neck pain. I plan to review her after the injection. … [295] 1. On 26 June 2015 the Plaintiff saw Dr Hunt who recorded that she had a SPECT scan and was trying an epidural at sites above and below. [296] 2. On 23 July 2015 the Plaintiff saw Dr Hunt who recorded that following a C6 epidural she had a good result with her arm pain better but neck still painful. [297] 3. On 13 August 2015, Dr Hsu saw the Plaintiff again after trialling a C3-4 right side foraminal injection. On 1 September 2015, Dr Hsu reported:- … Unfortunately, the injection did not give her long term relief but there has been some suggestion that there has been some short term relief. Indeed, straight after the injection her pain decreased from 6/10 to 2/10 in severity. Her post injection follow up appears to suggest that her pain generally decreased to about 4/10 in severity around the day 9-10 mark. This suggest that the C5-6 segment is likely to be related to her symptoms and I recommend that she need to proceed with a C3-4 and C4-5 right sided facet joint injection to see if we can identify the other symptomatic segments. If we are confident with locating the pathological and pain generating segments, then we may proceed with surgical intervention. … [298] 1. The Plaintiff gave evidence that her husband was retrenched in August 2015 and he did not obtain another position until eight months later with a salary reduction of $35,000. [299] Around that time the clinical notes record some consequent tension in the family. [300] 2. The Plaintiff saw Dr Hunt again on 21 and 28 August 2015. On the latter occasion the Plaintiff was noted as much the same. [301] On 25 September 2015 Dr Hunt recorded that the Plaintiff advised that the last injection helped and the Plaintiff was more positive now that something has helped. Dr Hunt recorded that she was advised by Dr Hsu that the Plaintiff could have more injections while he is away. [302] 3. Overall the medical evidence is consistent with the Plaintiff's evidence that she "felt fantastic" within minutes of the injections, but within days this would subside. She stated that there was no continued improvement in her condition after she ceased working in March 2015. [303] 4. The Plaintiff saw Dr Hsu again on 22 October 2015. In a report dated 26 October 2015, Dr Hsu noted that the injection at T3-4 and T4-5 proved to be helpful in terms of diagnostic information. He stated that the Plaintiff obtained approximately 40% relief of symptoms from the injections and it did give her approximately 2 weeks of relief. He later opined:- … This suggests that her pathology is likely coming from C3-C6, and her option for surgery will be a C3-C6 posterior cervical decompression and fusion. Her other option as an alternative to surgery will be to proceed with a chronic pain management program, however Mrs Moriarty has indicated that she would prefer proceeding with surgery. … [304] 1. Whilst awaiting surgery the Plaintiff continued to see Dr Hunt. [305] 2. On 6 May 2016, the Plaintiff underwent a C3-C6 posterior cervical decompression and fusion. [306] According to the Plaintiff, when she was discharged from hospital she was discharging fluid. Consequently, she was admitted to Norwest hospital between 17 May 2016 and 30 May 2016 so the wound could be cleaned out. [307] 3. The Plaintiff stated that following her discharge, she still had pain in her neck and her arms but it wasn't the infection pain. [308] She thereafter went home and recuperated with the assistance of her husband and mother. [309] She next went to The Hills Private Hospital as an outpatient to participate in a rehabilitation program between 14 July 2016 and 6 September 2016. [310] She stated that this included physiology exercises to improve balance and arm strengthening. She described as only having minor improvement to the lower part of her neck and that there was still some numbing pains to her neck and referring pains to both of her arms. [311] In oral evidence, she stated that the pain was restricted to her neck and her left shoulder and down her left arm; however the pain in those areas fluctuated. [312] The Plaintiff described that she had difficulty going to the toilet and showering as that increased the pain. She also described difficulty driving because of her posture and the need for her head to turn. She acknowledged that rehabilitation did result in some improvement. She stated that it "just slowly went the other side again. It just went downhill." [313] The Plaintiff further described difficulty ironing and sitting on chairs depending on the chair. In short, she described only being able to sit for short periods of time. [314] 4. Dr Hsu in a report dated 21 June 2016 confirmed that the Plaintiff had return to the operating theatre two weeks after her surgery due to a "wound ooze", requiring her to undergo a wound debridement and closure. He stated that the wound had healed without any further problems. As at that date, he described that the x-ray showed the implants in situ and the bone fusion was progressing well. Overall, he stated that her symptoms were gradually improving. [315] 5. The Plaintiff was reviewed again by Dr Hsu on 4 August 2016. He recorded significant improvement of her symptoms since surgery and found the physiotherapy day program particularly helpful. He recorded that she did not demonstrate any focal or neurological deficit and overall he was happy with the progress thus far. [316] 6. On 10 November 2016, the Plaintiff again came to see Dr Hsu. He noted that the Plaintiff initially had very good resolution of symptoms, including neck pain, but in the last two months the neck pain had increased. He recorded that the Plaintiff remembered experiencing increasing pain after some isometric exercises for her neck and since then the pain had gradually increased with time. Dr Hsu noted that the implants were in situ with good alignment and there were no complications. He referred the Plaintiff for a CT-scan. [317] 7. On 8 December 2016, the Plaintiff again saw Dr Hsu. He recorded that the CT scan demonstrated that the implants were in situ and the bone fusion was progressing well at the early stage. He opined that the symptoms were most likely related to soft tissue and muscle symptoms, and that physiotherapy and further exercise treatment should be the next course of management. In the circumstances, he referred the Plaintiff to an exercise physiologist at the Hills sports medicine. [318] 8. On 23 February 2017, the Plaintiff again came to see Dr Hsu who reported on 8 March 2017. He noted that the ongoing physiotherapy and exercise therapy was improving her symptoms overall, although she still experienced some degree of neck pain. He counselled the Plaintiff that she should use some pain medication from time to time to manage her symptoms as she recovers from her surgery. He recorded that the plain x-ray demonstrated that the implants were in situ and bone fusion was progressing well. [319] 9. On 18 May 2017, the Plaintiff again came to see Dr Hsu who reported on the same day. Dr Hsu noted that x-ray showed that the fusion was now solid from C3 to C6. The Plaintiff had been experiencing some left arm weakness and had been unable to perform some of the exercise prescribed by the exercise physiologist. Her neck pain did not appear to be as severe and noted that the Plaintiff was focused on the upper limb symptoms, particularly the left arm weakness. He arranged for the Plaintiff to undergo a CT scan to assess the fusion. [320] 10. On 6 June 2017, the Plaintiff again saw Dr Hsu for the follow up on the CT scan of the cervical spine. In a report dated 10 June 2017, Dr Hsu reported that there were no implant complications. He noted that the Plaintiff described her symptoms had improvements as she had changed her exercise therapist, and that the pain was now very management. At that stage, Dr Hsu did not feel the need to proceed with further investigations, but was happy to review the Plaintiff again if she had another flare up of symptoms. [321] 11. During 2018 the Plaintiff's primary care has been taken over by Dr Hamd. [322] 12. The Plaintiff returned for a follow up appointment and was seen by Dr Hsu on 9 May 2019. Dr Hsu reported on 16 May 2019, recording that the Plaintiff had been experiencing some increased neck pain and shoulder pain and intermittent arm pain as well. He recorded that the most recent imagining demonstrated that the fusion appeared to be solid, but there was a suggestion of some adjacent segment changes. He arranged for the Plaintiff to have a one scan to assess the fusion and adjacent levels. [323] 13. The Plaintiff was next seen by Dr Hsu on the 30 May 2019 and Dr Hsu reported on 3 June 2019. He stated that the bone scan confirmed the increased uptake at C6/7 which was below the previous fusion levels. He arranged for the Plaintiff to undergo a C6/7 foraminal injection. [324] 14. On 18 July 2019, the Plaintiff attended on Dr Hsu who reported that the foraminal injection gave her a significant decrease in pain by approximately 50%. He determined that there would be a trial of further injection to the right side and C6/7 to see whether there was a further relief of symptoms. [325] 15. On a follow up appointment of 15 August 2019, Dr Hsu reported on 19 August 2019 that the injections were very successful, with almost a complete resolution of neck pain and the Plaintiff able to sleep comfortably. He stated that some of the Plaintiff's right sided symptoms had gradually returned but that she was managing the symptoms well. He encouraged her to continue to carry out her usual non operative treatment program including exercises of the cervical spine. [326] In oral evidence, the Plaintiff stated that the relief lasted two weeks and then disappeared. [327] 16. The Plaintiff stated that since 2012, she has struggled with her mental health. [328] In 2017, she stated that she attended pain clinic with psychological help as she was having a hard time with the pain. She stated that it was of some assistance. [329] She currently takes pain relieving medication, including Targin, probiotic turmeric and black pepper to assist with inflammation, along with magnesium to assist with relaxing, Panadol and Oseto. [330] She also uses cold packs and heat packs on most nights. [331] The Plaintiff stated in evidence that she thought she had a further injection in September or November of 2019. [332] She conceded that she hadn't been back to see Dr Hsu since August 2019. [333] Plaintiff's Medico Legal 1. The Plaintiff attended a medico legal consultation at the request of her solicitors on 2 May 2014 with Dr Peter Spittaler, Neurosurgeon. Dr Spittaler reported on 5 May 2014. [334] He recorded her history as follows:- Ms Moriarty told me that she had no cervical symptoms prior to an incident on 27 March 2012. On the day in question she was supervising a Year 7 Asperger's student in a sports session. Another student in Year 11 was swearing nearby and conflict, particularly profanity, upset the Asperger's student. Ms Moriarty asked the Year 11 student (who incidentally had a history of aggressive behaviour) to stop swearing as it upset the student she was supervising. About 40 minutes later the Year 11 student allegedly kicked or threw a soccer ball or football which struck Ms Moriarty in the back of the head. It hit her with some significant force such that it hyper-flexed her neck. She fell to her knees although the force of the impact did not knock her off her feet, rather she was somewhat stunned by the impact and clearly she was not anticipating it. She did not lose consciousness but she was dazed. [335] 1. Dr Spittaler stated that the radiology demonstrated a C4/5 and C5/6 anterior discectomy with cages and an anterior cervical plate bridging C4 to C6. He stated that the diagnosis would appear to be an exacerbation of cervical degenerative disc disease with specifically a left C4/5 disc prolapse producing C5 nerve root compression and shoulder weakness. He noted that this had been treated with anterior surgical arthrodesis. He noted that there were a number of activities that would worsen the Plaintiffs symptoms such as driving, lifting and neck extension. He opined that she would have persisting neck and arm symptoms which would be made worse if she attempted heavy work, particularly lifting. [336] 2. Overall, he found a 29% Whole Person Impairment due to the cervical injury, less 10% due to pre-existing, asymptomatic, degenerative change, which would round off to a 26% Whole Person Impairment. [337] 3. The Plaintiff also relied on two reports of Dr Robin Rushworth, Consultant Neurosurgeon, who she saw on the request of the Defendants insurer on 8 July 2014. [338] Dr Rushworth obtained a history which he recorded as follows:- Mrs Moriarty had no neck or other symptoms prior to 27 March 2012. On this date, she was supervising a sport afternoon. One of the boys kicked a ball hard, which hit her on the back of the head. It was probably a soccer ball, but she was not sure. She fell to her knees, because of the pain in the back of the head and neck. She was holding her head. She went to the office, after which she drove home. [339] 1. Dr Rushworth opined that the Plaintiff's symptoms have continued since the work related incident on 27 March 2012. He found the Whole Person Impairment of 27%, [340] which in the follow up report on 16 September 2014, he related wholly to the work related injury. [341] 2. The Plaintiff also relied on the report of Dr Andrew Porteous, Occupational Physician, who she saw on the request of her solicitors on 24 August 2017. [342] He recorded her history in a report of that same date as follows:- Ms Moriarty was working as a teacher's aide on 27 March 2012 supervising a Year 7 Asperger's student doing sport. A Year 11 near them was upset and being very vocal and Ms Moriarty said she asked the person to stop swearing. About half an hour or so later, the Year 11 student kicked a ball hard. The soccer ball hit her on the back of the neck forcing it into hyperflexion and she dropped to her knees stunned. She said with this she had onset significant neck pain. She said she went back to the office and her husband came and picked and took her to hospital. She was assessed and discharged. [343] 1. Dr Porteous found on examination:- She had restricted neck range of motion. There was an anterior lower left 5 cm scar that was white and a posterior central vertical linear scar 10 cm long, which was white with both of these easily seen. She has a scarf around them to hide them and is very conscious. They are worse in the summer and she covers up, regularly puts sunscreen on them. There was hypersensitivity to light touch in the left posterior scalp and the left neck and the let posterior shoulder and dysaesthesia in the entire left arm, most prominent from the forearm distally. She had 5/5 power and normal reflexes today. Because of the neck pain, there was restricted left shoulder range of motion with 80% flexion (7%), 80% adduction (5%) with normal extension, abduction and external rotation of 60˚ and normal internal rotation of 90˚. Neer's and empty can test were negative. There was slight purpling in the left hand but no evidence of swelling. No evidence of trophic changes in the nails, no evidence of hair loss. Ms Moriarty does not meet the criteria for diagnosis of a complex regional pain syndrome detailed in the Guidelines. Commenting on visual disturbance and headaches is outside my area of expertise. [344] 1. Dr Porteous opined:- …Ms Moriarty is physically restricted from sustained neck position. She is restricted from stretching or reaching out. She is restricted from lifting, carrying, pushing and pulling. These restrictions result in a degree of incapacity from work as a Teacher's Aide. Then because of the extensive chronic pain she has and the ease with which this aggravated in my opinion she is totally incapacitated from work, including as a Teacher's Aide. However, she has such extensive pain that in my opinion she is totally incapacitated for work. Ms Moriarty would even without the chronic pain would have significant difficulty securing any 'non-sheltered' work as a result of the injuries from this accident because of her substantially reduced capacity and restrictions. This is further compounded by the degree of chronic pain she has. In my opinion, she is totally incapacitated from working full or part time in her former employment or in similar or other employment that she is suitably qualified and experienced in. [345] Defendant's Medico Legal 1. At the request of the Defendant's solicitor, the Plaintiff was examined by Dr Frank Machart on 21 October 2019. 2. Dr Machart diagnoses that the Plaintiff had been treated for cervical soft tissue injury, on the background of spondylosis, by cervical arthrodesis at C4/5 and C5/6 and subsequent posterior reinforcement. He noted she now suffered from chronic failed spinal surgery syndromes and chronic pain, poor response to treatment, and subjected to narcotic analgesics. [346] On examination he recorded:- Mrs Moriarty appeared to be generally stiff. She found it difficult to turn her head. There were ragged scars anteriorly on the right and posteriorly tethered and wide. There was diminished movement by a third from expected normal, flexion, extension, lateral flexion, and rotation. Reflexes were present and symmetrical, biceps and triceps. No radicular defined sensory loss. Generalised weakness without asymmetry testing muscle groups in elbows, wrists, fingers and intrinsics. [347] 1. In terms of work capacity he concluded:- Having given regards to the pathology, fused spine, there is not [sic] physical evidence of total disability. The chronic pain is a disabling condition. The level of disability cannot be equated with physical pathology. She is on narcotic analgesics. The level of physical activity is self-reported and cannot be confirmed or rejected based on clinical signs. It would be in her best interest if she adopted some form of employment. I could not see physical reasons why she could not work at least in some capacity, part-time sales, into space with office duties 4 hours per day, 5 days a week. [348] ….. The prognosis is poor in view of the chronic pain syndrome, failed neck surgery , and dependence on narcotic analgesics. [349] Findings 1. Overall I am satisfied on the evidence of Dr Hsu that as a consequence of the subject injury the Plaintiff sustained a C4-C5 disc herniation with significant foraminal stenosis and nerve root impingement resulting in neck and radiating shoulder and arm pain particularly on the left side. I am also satisfied that she suffered a C5-C6 foraminal stenosis as well on 22 January 2013 for C4-C5, C5-C6 anterior cervical decompression and fusion. On 6 May 2016, the Plaintiff underwent a C3-C6 posterior cervical decompression and fusion. 2. Much of the difference between the parties as to the Plaintiff's condition rested on the question of ongoing work capacity flowing form the injury. The Plaintiff submitted that in assessing loss of earning capacity the Court should accept the opinion of Dr Porteous whose specialty was specifically directed towards assessing a person's capacity for work, over the opinion of Dr Machart who as an orthopaedic surgeon has experience less directed to undertaking employment than an occupational physician. [350] 3. The Defendant claimed without elaboration that there were two periods where there was capacity to earn based on Dr Machart's evidence. These periods were 2 March 2015 to 5 May 2016 and from 11 May 2017. [351] Bearing in mind the date of Dr Marchant's report it was not explained how such a finding could be supported for the entirety of this period. In any event, I would not accept Dr Marchant's opinion. 4. Unlike Dr Porteous, Dr Machart did not appear to have the benefit of the extensive clinical notes of Drs Hsu and Hunt. Whilst he described the level of physical activity undertaken the Plaintiff as self-reported, that account is supported by the frequency and the consistency of the references in the said notes, with the absence of any suggestion of exaggeration. In particular, Dr Rushworth described the Plaintiff's presentation as consistent although noting the difficulties of evaluating someone who has had surgery. [352] 5. It was put to the Plaintiff in cross-examination that she could work 20 hours a week, four to five days a week in a clerical position where she could get up and move around without having to worry about time and the like. She responded stating that it she was to work it would rob her of any quality of life. [353] I accept the Plaintiff's evidence in this regard which was not otherwise disputed. It follows that I accept that the Plaintiff was totally incapacitated from 2 March 2015. Her evidence was supported by the contemporaneous treatment records earlier referred to. Economic loss Plaintiff's Evidence 1. The Plaintiff gave evidence that she completed her schooling in 1984 before going on to complete a commercial cookery course. She then undertook a commercial chef apprenticeship, working for a catering company until 1998. Thereafter until 2001, the Plaintiff worked for the Australian Pork Corporation in a role that involved her promoting pork in restaurants by recipe development, training courses, arranging in-house events. [354] In 2001 the Plaintiff stated that she had a car accident whilst pregnant. Complications arising from that led her to go off work on maternity leave early. Thereafter she did not return to the Australian Pork giving priority to caring for her child who had significant health issues. [355] The Plaintiff stated that she spent time assisting with intervention programmes at the Royal Institute of Deaf and Blind and worked with them with her son. She worked as a volunteer for three days a week before enrolling a certificate 3 TAFE course for Auslan. [356] She then worked in Tallowood on call as a casual from mid-2007. [357] 2. The Plaintiff stated that she was approached in 2008 with an offer of a paid position at Pendle Hill High School. This was initially as relief as a SLSO for a teacher's aide who was on leave. [358] She stated that she worked five days a week for around two weeks. [359] She was thereafter asked if she could continue. [360] She stated that she commenced permanent part time employment working three days a week from Monday to Wednesday for 6.15 hours a day. [361] At one point however the Plaintiff's evidence was that her classification was changed. She was advised that it was due to funding and SSLO's taking away all permanent part-time contracts. [362] The Plaintiff recorded in a statement that she would often be called in to accommodate sick leave, holiday leave or when an SLSO was taken off duties to assist with office staff. 3. As part of that program, she stated that she worked with students who were in wheelchairs, several students who had cerebral palsy, and with students who had Asperger's syndrome or were on the autism spectrum. [363] 4. In 2010-2011, the Plaintiff stated she was asked to work fulltime in the kitchen and her classification was changed. When she was not in the kitchen, she stated she assisted with the Multi-Lit programme for children with reading skills that were behind. [364] In cross-examination the Plaintiff stated that she was offered a permanent position in the kitchen in 2010. She stated that she declined as she wasn't going to take somebody's job "who was on sick leave." [365] While she stated that she was encouraged in 2010 by the hospitality teacher to get a teaching degree to use her skills as a chef she did not progress that at all. [366] The furthest it appears the matter got was the Plaintiff investigating online courses. [367] In cross-examination the Plaintiff stated that out of eight terms in 2010-11 she worked in the kitchen for three and a half terms. [368] 5. The Plaintiff stated whilst invited to work greater hours as an SSLO they were discouraged because there was another teacher's aide that who needed the money. [369] The Plaintiff stated that that person became permanent in 2011 having started employment in the 2000s. She conceded that when she worked at Pendle Hill only one out of four SLSO's were permanent with others being permanent part time or casuals dependent on need. [370] 6. In cross-examination, the Plaintiff reiterated that notwithstanding the pressure to allow another worker to take the extra work she did not apply to do extra work with any other school in the local area. She added that at that stage it suited her to work three days a week. [371] 7. The Plaintiff stated that she envisaged the perfect role would have been working four days (Monday-Thursday), then having Friday off to support her children at primary school mass. [372] The Plaintiff indicated that at that stage she was happy to work three days a week. [373] 8. She stated that her initial plan after 2013 when her eldest son was in Year 7 was to go back to full time employment. [374] She later added that this didn't happen and that she had in her mind that the latest it would happen would be when her second child was in Year 7 which would be at the beginning of 2015. [375] 9. In cross-examination, it was put the Plaintiff that there was no substantial difference between her earnings in the tax years 2010, 2011 and 2012. The Plaintiff stated that she couldn't respond to this. [376] She reiterated that at some point she was working 3 days a week, and an approach was made to see whether she was interested in taking on more work when another student came on board. At that time she stated that there was pressure for another co-worker to do the extra work because she needed the money. [377] At that point she stated that she did not apply to do any extra work at any other school, although she did help and work full time when they required her. She stated that she did apply for a permanent position that became available. [378] She did not adopt the suggestion that she did not meet the criteria for the job. [379] She stated that she was not aware that the other employee who became permanent had been working at the school since the 1990s, stating that she was aware that she had started employment in the 2000s. [380] She accepted that she was given the certificate from Dr Hsu to work her normal hours with restriction in May 2013. She further accepted that she continued to work until March 2015, three days a week, sometimes more if offered extra days. [381] She accepted that up until March of 2019, she had seen Dr Hsu for about 18 months. [382] She stated that she did not look for other work and did not feel capable of working, regarding herself as completely unemployable. [383] She stated that while she was motivated to look for work, the depression, lack of sleep and waking up in nightmares of feeling pain meant that she was mentally incapable of working. [384] The Plaintiff conceded that she had not been back to see Dr Hsu since August 2019. She did not think that she was able to work, despite the treatment of Dr Hsu. She stated that if she did attempt to work, she would be incapable of having a quality of life. [385] Judith Ann Sims 1. Ms Sims conceded that the Plaintiff commenced work as a school learning support officer (SLSO) in 2008. [386] She described the role as basically to assist students and that might be in terms of their program of learning, but could also deal with issues related to student behaviour, providing one-on-one assistance. She stated that they are also employed for social support, particularly where students have been diagnosed with Asperger's or autism. [387] 2. Ms Sims stated that at the commencement of the Plaintiff's employment, the nature of employment for all SLSOs was temporary, with some day to day casual employment. [388] Permanency was not an option with the Department of Education until 2011. This was introduced as a consequence of the recognition that some SLSOs had been working in schools of long periods of time and the decision to make a person permanent followed a recommendation by the principal and would be confirmed by the Department where it could be established that there was an ongoing educational need for the position and a dedicated funding source for the position. [389] 3. Ms Sims stated that the funding source was what is known as integration funding and applies to individual students where an assessment was made by the Department of their level of disability and the support and personal care needs required for those students. At one point in 2011, there was a recommendation made to the Department for one SLSO position to be a permanent position and that went to a person who had worked at the school for five days a week prior to Ms Sims coming to the school. [390] Since 2011, she stated that no other permanent appointments have been made because of the restricted number of students with severe physical disabilities. [391] Ms Sims stated that the funding for the current permanent SLSO position was against a severely disabled student who is currently in Year 12. She stated that when he exits Year 12, unless there is a student with a similar level of disability enrolling in the school or a number of students with more minor disabilities attracting lesser amounts of funding, there will not be sufficient funding to maintain a permanent SLSO position in the school. One of the conditions of the acceptance of a permanent SLSO position in the school was that the person would be aware that should the dedicated funding source cease then that person would be expected to nominate for a transfer to another school. If there were no vacant positions in other schools, there would be an expectation that that person would be made redundant and they could then choose to apply for casual or temporary contract work. [392] 4. Ms Sims described there were four SLSO positions, only one of whom was permanent. One of the SLSOs worked two days a week, one worked three days a week and the other worked three or four days a week. Ms Sims that in secondary schools in general, the trend is to employ SLSOs to assist largely with students who have got some level of minor physical disability and to actually employ trainer teachers for the classroom component of the work. She stated that this was to improve student literacy and numeracy in accordance with the schools strategic direction and to this end specialist teaching qualifications were more successful in enabling the achievement of this goal than a generalist SLSO. [393] 5. With respect to the Plaintiff, Ms Sims stated that had she still been working at the school she would be at a level 4, based on continuity of employment. [394] Ms Sims stated that since 2010, the number of SLSO positions has remained around the same. [395] She stated that in 2012, the number of students was around 300 and is currently around 409. [396] Notwithstanding this, she stated that there had not been an increase in demand because of decisions about the employment of SLSOs versus decisions about the employment of trained teaching staff. [397] She stated that SLSOs today were, generally speaking, doing a balance between the personal care component of the role based on the disability of the identified individual funded students, and then classroom teaching, which includes learning, behaviour and social support. [398] Going forward, based on the increased residential growth in the area, Ms Sims anticipated that the school would become very large, with a new building being built and expected to be occupied by 2023. [399] She estimated that the school would ultimately become one of 2000 students in the next few years. [400] On that point, she stated there would continue to be a need for SLSO support but she was unable to state what the balance might be between SLSOs and trained teaching staff as it would depend on funding. However, she stated that there would be ongoing SLSO work in the dedicated schools for specific purposes, where all students enrolled in those schools have special needs and attract a higher level of funding and applications for employment in those school setting would generally be by advertisement and merit selection, but temporary contracts and day to day casual work also existed in those setting. [401] 6. In cross-examination, Ms Sims stated with the regard to decisions around employment and the length of service, somebody who has experience in working five days a week ordinarily would have priority over someone who has lesser experience, both in terms of total time and in terms of the number of days of employment per week. [402] She stated that length of service would be a factor, but only one of a series of factors that would be taken into account in decisions relating to permanency. [403] The overarching would be available funding and the nature of the personal care needs of the students. [404] Ms Sims stated that SLSOs were generally appointed at a school but paid by the Department of Education. The school would advertise in a departmental publication called SchoolBiz, putting out expressions of interest for a temporary SLSO on either a short-term or long-term basis. If a school had a staffing allocation, the position could go to merit selection. [405] 7. Ms Sims acknowledged that the Plaintiff at one stage was engaged working in the kitchen in the home economics faculty. She acknowledged that she worked 34 hours a week, fulltime on short-term relief while someone was on leave. This was in 2010 and 2011. [406] The position, she stated, paid a couple of dollars less an hour than an SLSO. [407] Ms Sims acknowledged that even if someone came along with as a qualified chef and had done their apprenticeship, they would need to make basic requirements to be engaged in teaching in home sciences or hospitality. This included a Bachelor of Education degree. She stated that to her knowledge this was prerequisite, even in the past. [408] Past Loss of Earning Capacity 1. The Plaintiff was born in 1968 and is currently 52 years of age. At the time of the accident she was 44 years and 1 month. It is accepted that but for her injury she would have worked to age 67. 2. Both parties accepted that for the period 27 March 2012 to 16 July 2012, the Plaintiff's earnings would have been $450 net per week, making her loss over the period $6,750 based on 15 weeks. In fact the period is 16 weeks (rounded) making an amount of $7200. 3. The Plaintiff had been assessed as fit to return to work from 20 July 2012 by Regain Rehabilitation. 4. From 20 July 2012 to 12 September 2012 there is no evidence of any loss of earnings. The Plaintiff took a holiday from 17 – 27 August 2012. 5. The Plaintiff stated that she ceased work on 12 September 2012 and went to a chiropractor, followed by Norwest Hospital on 16 September 2012, and thereafter saw Dr Hunt on 17 September 2012 and Dr Hsu 24 September 2012. According to her evidence, she returned to work at full capacity on 20 May 2013. This represents a period of 35 weeks (rounded), not 34 weeks as asserted by the Defendant in its schedule. Accepting a figure of $461 per week based on the Plaintiffs net earnings for the 2011 tax year, this would come to a figure of $16,135. 6. On 20 May 2013, the Plaintiff continued working at Pendle Hill High School to 2 March 2015, being a period of 93 weeks. The Plaintiff claims $916 per week from 2 March 2015 to date and continuing based on what she would have earned 7. The Defendant concedes partial incapacity from 2 March 2015 to 5 May 2016, total incapacity thereafter until 11 June 2017 and partial incapacity thereafter. Based on a capacity to work 10 hours a week the Defendant asserts the loss amounts to $337 per week (at $20 per hour) for all periods of partial incapacity until 9 March 2020. From this latter date the Defendant concedes $393 per week (at $22 per hour ongoing). From 6 May 2015 to 10 June 2017 the Defendant would have allowed $537 per week for a period of 57 weeks. 8. I accept that but for the accident the Plaintiff would have continued in her employment with the Defendant. Despite expressing some desire for a fulltime position prior to the injury, the Plaintiff's evidence was that she did not take up the opportunity when presented nor did she seek employment in a similar role elsewhere nor pursue advancement of her qualifications. Nevertheless, accepting the Plaintiff's desire to move into full time work by early 2015 it is not apparent on the evidence of Ms Sims that the opportunity has become available in the time to date, although I accept that there is a possibility into the future in light of the expected growth in enrolments. Even so, I bear in mind that the likelihood of such a full-time role becoming available is affected by the available funding and the changed priorities for the use of SLSO's outlined by Ms Sims. I acknowledge that there is evidence that the Plaintiff accepted working additional hours when made available at Pendle Hill High. However, I am not satisfied on the evidence that the Plaintiff would have pursued other options outside Pendle Hill High School even accepting her husband being retrenched in August 2015 and subsequently being employed elsewhere on a lower salary. The Plaintiff conceded that the position of SLSO now had qualifications that that she does not have. [409] 9. Compensation for loss of earning capacity is awarded because the diminution in an injured Plaintiff's earning capacity "is or may be productive of financial loss." [410] In the circumstances, I would not allow any additional component for the past economic loss based on the Plaintiff obtaining full time employment at some point after 2015. I accept the Defendant's submissions that to account for the likelihood that the Plaintiff would have moved to full time work in the future when enrolments would have expected to rise and opportunities may have become available, a buffer figure should be allowed over and above the figure for future economic loss based on her casual position. 10. Based on 6.15 hours per day for 3 days at $29.77 gross per hour I would allow $509 net per week from 2 March 2015 to 30 June 2019 (226 weeks) being $115,034 (rounded). From 1 July 2019 to 1 July 2020 (52 weeks), based on 6.15 hours for 3 days at $36.19 gross per hour, I would allow the net sum of $600 per week, being the sum of $31,200. 11. The Plaintiff sought a further payment under past economic loss for long service leave of 13 weeks at $950, totalling $12,350. Accepting that there was an entitlement either as a casual or part time employee [411] the Plaintiff did not identify how a separate component would arise to the past economic loss calculation which embraces the period in question. 12. Accordingly, in all, for past economic loss I would have allowed $169,569. 13. To that figure I would allow loss of superannuation at 11% being $18,653 (rounded). Future Loss of Earning Capacity 1. For the future loss of earnings, I would allow $635 net per week based derived from 6.15 hours per day for 3 days per week at $38.37 per hour gross. Using the 5% multiplier and allowing 15% for vicissitudes this comes to a figure of $299,561 (rounded). 2. To this figure I would allow a buffer for the possibility that the Plaintiff would have entered full time employment at some point in the future. In doing so I would accept that the Plaintiff's earnings would have been $950 net per week and allow $60,000 making total future economic loss $359,561. 3. Allowing 11% for future loss of superannuation I would allow $39,552 (rounded). 4. In all, the damages calculation would be: Head of Damage Amount Past economic loss $169,569 Past loss of superannuation $ 18,653 Future economic loss $359,561 Loss of future superannuation $ 39,552 Total: $587,335 1. To that figure it would have been necessary to deduct workers' compensation payments and add any Fox v Wood [412] component. [413] The Plaintiff also foreshadowed a possible claim for interest. [414] ORDERS 1. For these reasons the orders of the Court will be as follows: 1. Verdict for the Defendant. 2. Subject to any application within 14 days through my Associate to relist the matter for any further or other order as to costs, the Plaintiff is to pay the Defendant's costs. 3. Exhibits to be retained for 28 days. ********** Endnotes 1. Hereinafter 'SLSO'. 2. Exhibit C, starting at page 119. 3. Exhibit C. 4. T 150.37-.42. 5. T 150.44-.46. 6. Exhibit 5. 7. T 23.26-.32. 8. T 23.45-.46. 9. T 23.48-.50. 10. T 23.18-.20. 11. T 24.20-.41; Exhibit B at 3, [3]. 12. T 24.46-.47. 13. T 25.41-.47. 14. T 25.50-26.07. 15. T 26.07-.14. 16. T 25.26-.39. 17. T 26.32-.27. 18. T 27.04-.22. 19. T 27.24-.27. 20. There were a number of different spellings for this teacher throughout the proceedings. This particular spelling has been adopted for consistency. 21. T 27.37-28.22. 22. T 85.25-.27. 23. T 85.06-.09. 24. T 85.18-.23. 25. T 28.35-29.01. 26. T 26.26-.41. 27. T 29.09-.13. 28. T 29.19-.32. 29. T 29.34-.37. 30. T 29.48-30.04. 31. MFI A which became Exhibit 2. 32. T 88.01-.42. 33. T 88.50-89.27. 34. T 111.29-.31. 35. T 111.33-.35. 36. T 31.40-32.05. 37. T 96.14-.17. 38. T 96.35-.39. 39. T 97.26-.28. 40. T 97.30-.36. 41. T 102.20-.37. 42. T 104.01-.32. 43. T 104.45-105.04. 44. T 106.17-.20. 45. T 107.48-108.12. 46. T 30.12-.22. 47. T 30.24-.28. 48. T 90.48-91.05. 49. T 91.20-.31. 50. T 91.33-92.39 51. T 92.06-.15. 52. T 30.33-.34. 53. T 30.36-.40. 54. T 30.42-.43. 55. T 89.42-90.06. 56. T 31.01-.07. 57. T 31.10-.17. 58. T 31.19-.21. 59. T 32.10-.22. 60. T 112.18-.20 61. T 32.46-.48. 62. T 32.50-33.02. 63. T 33.04-.06. 64. T 33.08-.09. 65. T 33.34-.39. 66. T 33.46-.48. 67. T 112.18.-28. 68. T 34.03-.12. 69. T 34.14-.23. 70. T 110.39-.44. 71. T 34.40-.44 and 111.03-08. 72. T 34.48-.49. 73. T 35.19-.24. 74. T 35.26-.30. 75. T 35.32-.35. 76. T 35.37-.39. 77. Exhibit B at 3, [4]. 78. T 113.29-.45. 79. T 108.50-109.04. 80. T 109.15-.19. 81. T 109.21-.22. 82. T 35.41-.47. 83. T 101.06-.22. 84. T 36.07-.21. 85. T 109.26-.34. 86. T 110.15-.16. 87. T 36.26-.40. 88. T 113.16-.17. 89. T 113.19-.20. 90. Exhibit 5 at 206. 91. T 120.01-.19. 92. T 120.40-.41. 93. T 124.39-.44. 94. T 37.01-.12. 95. T 37.27-.30. 96. T 37.32-.37. 97. T 37.41-.45. 98. Exhibit 5 at 264. 99. Exhibit 5 at 267. 100. T 151.03-.27. 101. T 152.10-.16. 102. T 152.18-.22. 103. T 152.24-.27. 104. T 152.38-.45. 105. T 153.22-.23. 106. T 153.28-.48. 107. T 153.50-154.02. 108. T 154.04-.05. 109. T 154.11-.13. 110. T 154.15-.18. 111. T 154.20-.24. 112. T 154.47-155.01. 113. T 155.13-.14. 114. T 158-04.18. 115. Exhibit 1. 116. T 168.28-.30. 117. T 168.47-.50. 118. T 175.06-.26. 119. T 175.35-176.28. 120. T 177.01-.05. 121. T 177.21-.33. 122. Exhibit C at 429; Exhibit 5 at 483. 123. T 178.46-179.13. 124. Exhibit C at 429-30; Exhibit 5 at 483-4. 125. Exhibit C at 431; Exhibit 5 at 485. 126. Exhibit C at 467; Exhibit 5 at 378. 127. T 179.15-.26. 128. Exhibit C at 474; Exhibit 5 at 385. 129. Exhibit C at 475; Exhibit 5 at 386. 130. Exhibit C at 477; Exhibit 5 at 388. 131. Exhibit C at 479; Exhibit 5 at 390. 132. Exhibit C at 579; Exhibit 5 at 428. 133. T 179.28-.48. 134. Exhibit C at 588; Exhibit 5 at 437. 135. Exhibit C at 599; Exhibit 5 at 450. 136. Exhibit C at 605; Exhibit 5 at 456. 137. T 180.03-.13. 138. T 180.15-.19. 139. T 180.21-.31. 140. T 180.33-.38. 141. T 180.40-.46. 142. T 180.46-.48. 143. T 181.10-.16. 144. T 181.18-.20. 145. T 181.22-.26. 146. T 181.28-182.04. 147. T 182.27-.29. 148. T 188.03-.24. 149. T 188.33-189.05. 150. Exhibit C at 205, [25]. 151. Exhibit C at 207-8, [33]-[41]. 152. Exhibit C at 209, [45]-[48]. 153. Exhibit C at 211, [53]. 154. Exhibit C at 212, [62]. 155. Exhibit C at 429; Exhibit 5 at 483. 156. Exhibit C at 220 and 429; Exhibit 5 at 483. 157. Exhibit C at 221 and 431; Exhibit 5 at 456. 158. Exhibit C at 217-8, [81]-[82] and 553. 159. Exhibit C at 218 [83]. 160. Exhibit C at 230, [122]. 161. Exhibit C at 232 [126]. 162. Exhibit C at 232 [127]. 163. Exhibit C at 233 [129]. 164. Exhibit C at 234 [135]. 165. Exhibit C at 234 [136]. 166. Exhibit C at 235 [137]-[139]. 167. Exhibit C at 235-9 [140]-[153]. 168. Exhibit C at 239-41 [154]-[158]. 169. Exhibit C at 241-2 [159]-[161]. 170. Exhibit C at 242-4 [162]-[182]. 171. Exhibit C at 231 [123]. 172. Exhibit C at 244-5 [183]-[190]. 173. Exhibit C at 248-9 [205]. 174. T 140.25-.42. 175. T 141.04-.07. 176. T 143.36-.46. 177. T 144.14-145-.50. 178. T 146.01-.07 179. T 146.12-.30. 180. Exhibit C at 201, [2]. 181. Plaintiff's written submissions at [27]. 182. Plaintiff's written submissions at [45]. 183. Plaintiff's written submissions at [49]. 184. Plaintiff's written submissions at [50]. 185. (1959) 101 CLR 298. 186. Plaintiff's written submissions at [51]-[52] and [54]. 187. (1986) 6 NSWLR 529. 188. Plaintiff's written submissions at [55]-[57]. 189. Plaintiff's written submissions at [58]. 190. T 193.47-.50. 191. T 199.36-200.04. 192. T 201.45-.46. 193. T 203.15-.20. 194. T 203.46-.50. 195. T 198.26-.30 and 203.46-204.01. 196. T 198.34-.38. 197. T 207.32-.34. 198. T 129.14-.17. 199. Exhibit B. 200. Plaintiff's written submissions at [10(xi)]. 201. T 113.22-.23. 202. T 145.47-145.07. 203. T 146.01-.07 204. T 146.25-.26. 205. T 146.30. 206. T 146.01-.07. 207. State of New South Wales v Sticker [2015] NSWCA 180 at [82]. 208. [2012] QSC 253 at [70]-[75]. 209. [1992] HCA27; (1993) 176 CLR 408 at [15]. 210. [2008] HCA 19; (2008) 82 ALJR 870 at [33]. 211. T 158.15-.18. 212. Exhibit C at 209 [47]. 213. T 221.22-222.17. 214. [2017] HCA 2; (2017) 91 ALJR 262. 215. (2014) 255 CLR 1 (Although this was a dissenting judgment the principles have not been doubted see Machs v Viscariello [2017] SASFC 172 at [601] and Inghams Enterprises Pty Ltd v Kim Yen T, at [55]. 216. T 85.29-.38. 217. CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 at [87]. 218. Re Day [2017] HCA 2; (2017) 91 ALJR 262 at [67]. 219. (1986) 6 NSWLR 529. 220. T 37.32-.40. 221. T 37.42-.45. 222. T 37.47-38.27. 223. Exhibit C at 152; Exhibit 5 at 60. 224. T 38.21-.24. 225. T 38.26-.27. 226. T 38.43-.45. 227. Exhibit C at 125. 228. Exhibit C at 152; Exhibit 5 at 60. 229. Exhibit C at 152; Exhibit 5 at 60. 230. Exhibit C at 73. 231. Exhibit C at 152; Exhibit 5 at 60. 232. Exhibit C at 151; Exhibit 5 at 59. 233. Exhibit C at 151; Exhibit 5 at 59. 234. Exhibit C at 127. 235. Exhibit C at 100. 236. Exhibit C at 101. 237. Exhibit C at 151; Exhibit 5 at 59. 238. Exhibit C at 101. 239. Exhibit C at 105. 240. Exhibit C at 110-5. 241. Exhibit C at 118. 242. T 39.10-.12. 243. T 39.50-40.01. 244. Exhibit C at 150; Exhibit 5 at 59. 245. Exhibit C at 150; Exhibit 5 at 58. 246. T 40.03-.06. 247. Exhibit C at 150; Exhibit 5 at 58. 248. Exhibit C at 150; Exhibit 5 at 58. 249. Exhibit C at 150; Exhibit 5 at 58. 250. Exhibit C at 124. 251. Exhibit C at 149-50; Exhibit 5 at 58. 252. Exhibit C at 124. 253. T 39.14-.28. 254. Exhibit C at 149; Exhibit 5 at 57. 255. Exhibit 5 at 269. 256. Exhibit 5 at 271. 257. T 40.17-.21. 258. Exhibit C at 132. 259. Exhibit C at 149; Exhibit 5 at 57. 260. Exhibit C at 33. 261. Exhibit C at 128. 262. Exhibit C at 148; Exhibit 5 at 56-7. 263. Exhibit C at 40-3. 264. Exhibit C at 148; Exhibit 5 at 56. 265. Exhibit C at 147; Exhibit 5 at 55. 266. Exhibit C at 74; Exhibit 5 at 182. 267. Exhibit C at 147; Exhibit 5 at 55. 268. Exhibit C at 44. 269. Exhibit C at 45-6; Exhibit 5 at 15. 270. Exhibit C at 47. 271. T 41.28-.32. 272. T 41.34-.37. 273. T 41.42-.46. 274. Exhibit C at 49. 275. T 42.12-.27. 276. T 42.33-.48. 277. Exhibit B at 19, [29]. 278. Exhibit C at 139; Exhibit 5 at 47. 279. Exhibit C at 138-9; Exhibit 5 at 46-7. 280. Exhibit C at 138; Exhibit 5 at 46. 281. Exhibit C at 137; Exhibit 5 at 45-6. 282. Exhibit C at 136-7; Exhibit 5 at 45. 283. Exhibit C at 136; Exhibit 5 at 44. 284. Exhibit B at 19, [29]. 285. Exhibit 5 at 42-3. 286. Exhibit 5 at 42. 287. Exhibit C at 129. 288. Exhibit 5 at 42. 289. Exhibit B at 19 [29]. 290. Exhibit 5 at 41. 291. T 43.31-.42. 292. Exhibit C at 50. 293. Exhibit 5 at 41. 294. Exhibit C at 52. 295. Exhibit 5 at 40-1. 296. Exhibit C at 53. 297. Exhibit 5 at 40. 298. Exhibit 5 at 40. 299. Exhibit C at 54. 300. T 50.10-.38. 301. Exhibit 5 at 36-7. 302. Exhibit 5 at 39. 303. Exhibit 5 at 39. 304. T 44.04-.13. 305. Exhibit C at 55. 306. Exhibit 5 at 34-9. 307. Exhibit C at 56-60. 308. T 44.28-.49. 309. T 45.11-.13. 310. T 45.15-.22. 311. T 45.24-.32; Exhibit B at 21, [38]. 312. Exhibit B at 21, [38]-[39]. 313. T 45.44-.49. 314. T 46.01-.32. 315. T 47.06-.15. 316. Exhibit C at 61. 317. Exhibit C at 62. 318. Exhibit C at 63. 319. Exhibit C at 64. 320. Exhibit C at 65. 321. Exhibit C at 66. 322. Exhibit C at 67. 323. Exhibit 5 at 22. 324. Exhibit C at 68. 325. Exhibit C at 69. 326. Exhibit C at 70. 327. Exhibit C at 71. 328. T 48.02-.18. 329. T 51.50-52.01. 330. T 52.21.-39. 331. T 53.03-.30. 332. T 53.35-.42. 333. T 131.47-.50. 334. T 132.05-.12. 335. Exhibit C at 75-81. 336. Exhibit C at 76. 337. Exhibit C at 78. 338. Exhibit C at 80. 339. Exhibit C at 82-8. 340. Exhibit C at 83. 341. Exhibit C at 87. 342. Exhibit C at 89. 343. Exhibit C at 91-9. 344. Exhibit C at 92. 345. Exhibit C at 94-5. 346. Exhibit C at 96-7. 347. Exhibit 5 at 190. 348. Exhibit 5 at 189. 349. Exhibit 5 at 190. 350. Exhibit 5 at 191-2. 351. Plaintiff's Written Submissions at [95]. 352. T 212.40-.45. 353. Exhibit C at 86. 354. T 132.20-37. 355. T 14.39-15.50. 356. T 16.08-.49. 357. T 17.47-.18.06. 358. T 18.31-.50. 359. T 19.21-.29. 360. T 19.31-.39. 361. T 19.41-.43. 362. T 19.21-20.14. 363. T 21.43-.50 364. T 22.37-.42. 365. T 21.47-22.42. 366. T 60.21-.31. 367. T 57.15-.22. 368. Exhibit B at [49]. 369. T 83.22-.33. 370. T 22.50-23.05. 371. T 59.34-60.06. 372. T 128.13-.15. 373. T 21.18-.24. 374. T 23.07-.08. 375. T 21.18-.40. 376. T 49.36-50.02. 377. T 126.38-127.20. 378. T 127.22-.34. 379. T 127.36-128.29. 380. T 128.38-.39. 381. T 129.44-.49. 382. T 130.07-.20. 383. T 131.11-.13. 384. T 131.15-.25. 385. T 131.31-.34. 386. T 132.27-.27. 387. T 171.12-.14. 388. T 171.16-.24. 389. T 171.26-.32. 390. T 171.34-.43. 391. T 171.45-172.06. 392. T 172.08-.12. 393. T 172.14-.38. 394. T 172.46-173.06. 395. T 173.08-.14. 396. T 173.38-.44. 397. T 173.49-174.01. 398. T 174.03-.10. 399. T 174.20-.24. 400. T 171.05-.10. 401. T 170.17-.21. 402. T 174.38-.46. 403. T 182.44-.49. 404. T 183.01-.07. 405. T 183.21-.25. 406. T 184.05-.13. 407. T 185.01-.17. 408. T 185.19-.25. 409. T 185.39-.49. 410. T 81.09-.11. 411. Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347 412. S 4(11)(a) of the Long Service Leave Act 1955 (NSW). 413. (1981) 148 CLR 438. 414. See Defence at [9] and T 190.45-191.31. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2020