District Court New South Wales Medium Neutral Citation: Stanberg v State of New South Wales [2024] NSWDC 462 Hearing dates: 30 September 2024, 1-2 October 2024 Date of orders: 4 October 2024 Decision date: 04 October 2024 Jurisdiction: Civil Before: Newlinds SC DCJ Decision: (1) Judgment for the Defendant (2) The Plaintiff to pay the Defendant's costs. (3) Grant leave to either party to apply to vary the costs order, providing such application is sent to the chambers of Judge Newlinds SC by the close of business on 11 October 2024. Catchwords: NEGLIGENCE – Personal injuries – Injury at primary school whilst Plaintiff engaged in long jump event – Risk of harm – Adequate precautions – Res ipsa loquitur – Causation – Damages – Held no failure by school to take adequate precautions against risk of harm Legislation Cited: Civil Liability Act 2002 (NSW) s 5B; s 5I Cases Cited: GIO (NSW) v Fredrichberg (1968) 118 CLR 403 Mummery v Irvings Pty Limited (1956) 96 CLR 99 Paul v Cooke (2013) 85 NSWLR 167 Phillis v Daly (1988) 15 NSWLR 65 Scott v London St Katherine Docks Co (1865) 159 ER 685; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 Category: Principal judgment Parties: Addison Stanberg by his Tutor Elise Stanberg (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Sleight (Plaintiff) C O'Neill (Defendant) Solicitors: Neville Hourne & Borg Legal (Plaintiff) Wotton & Kearney (Defendant) File Number(s): 2023/283589 Publication restriction: Nil JUDGMENT Overview 1. On 24 July 2019, 11-year-old Addison Stanberg ("the Plaintiff") was a student in year 6 at Neutral Bay Public School. He was an enthusiastic, bright, and successful student who enjoyed all types of sport and was very good at many, in particular athletics. 2. On the morning of 24 July 2019, the Plaintiff and about 50 other students were involved in an activity at the school with a view to qualifying for the school athletics carnival in long jump. That activity was supervised by two teachers, Ms Remenyi, and Ms Nero. 3. The way the selection process worked was that a qualifying distance was set on a round by round basis. Each qualifying distance was marked by orange "cones". Students had three attempts to make that qualifying distance. If they did not, they were knocked out. If they met that distance, a new qualifying target was set and so on. 4. The Plaintiff got through approximately three rounds of the event and was in the last round. At that point he had made somewhere between six and perhaps nine jumps without incident. 5. The long jump set up included, as might be expected at a primary school, a run‑up area, presumably made of asphalt, but covered in a material known as "Softfall", which is a surface commonly used in modern playgrounds to make them less dangerous. At the end of the run-up area was a line indicating where the jump had to commence at the latest, and thereafter a sandpit landing zone which was approximately 2 metres wide and perhaps 6 or so metres long. I will return to the question of how deep the pit was. One teacher supervised the start of the run-up area and the other the landing zone. 6. The sandpit was just that. It was a pit which had sand in it. It doubled as the kindergarten sandpit in the non-athletic season and was located in the infants part of the school known as "Kindyland". The sides and bottom of the pit were also made of "Softfall". When being used for long jump, the purpose of the sand was two-fold; to cushion the landing of competitors and to be a way to record where a competitor landed. 7. When the Plaintiff made his last jump of the day, he landed feet first and perceived his feet to impact, not just sand, but a hard surface underneath. This caused his feet to slip forward, and for him to fall backwards onto his buttocks and back. 8. The Plaintiff suffered quite serious back pain immediately, attended the nurse at the school, and felt significant back pain in the period thereafter, which has continued, albeit at a lesser level and intermittently, to this day. 9. The Plaintiff's case is that the State of New South Wales ("the Defendant"), which accepts that it would be vicariously liable for any negligence on the part of either the school or members of the school staff, breached its duty of care to him because the school failed to take adequate precautions for the risk of injury involved in any long jump activity. The Plaintiff's case boils down to the proposition that there was not sufficient sand in the landing area, either per se or because the sand was not raked after each jump. The Plaintiff gave evidence that he observed the level of the sand being about 10cm below ground level. There was a contest about his evidence in this regard. It was submitted on his behalf that his evidence was that the sand was 10cm deep. I reject this submission, it was not as I understand the Plaintiff's evidence when he gave it, nor is it a fair reading of the transcript at T29 and T55. The Issues 1. The Defendant denies any breach of duty of care. 2. Whilst the Defendant does not suggest that the Plaintiff was anything other than an honest witness giving his best recollection of what he felt and did on the day, the Defendant does quite properly call into question the reliability of that evidence. It is evidence given by a 16-year-old boy as to events that occurred some four years earlier when he was 11 years old, which includes lay opinion evidence of that 11-year-old as to measurement and perception as to what he landed on. The combination of those factors, so the submission goes, is that such evidence is inherently unreliable. 3. The Defendant points out that the only evidence that there was not sufficient sand in the landing area is the Plaintiff's opinion evidence that he considered there was not enough sand because of what he felt when he landed immediately prior to suffering the injury and his observations that the sand was not "up to the top of the… trench". 4. The Defendant called direct evidence from teachers, which contradicted this account. I will return to the quality of this evidence. 5. In any event, the Defendant points to evidence that the pit was at least 30cm deep. The Plaintiff's expert Mr Williams gave evidence of a standard for depth of sand in long jump pits in competition, which apparently applies to all long jump pits, from the Olympics down to primary school children in the suburbs of Sydney. Mr Williams says that standard is 30cm. There is, however, no evidence that level of sand is considered a necessary precaution in the context of primary school children, not involved in an actual competition, jumping on a "Softfall" covered surface. Ultimately, the Defendant contends that the Plaintiff has failed to prove any breach of duty and that, in any event, the identified risk of harm was inherent in the activity in the sense that it could not be avoided by the exercise of reasonable care. 6. The Defendant also denies that the Plaintiff suffered any significant injury which caused him anything other than minor short-lived pain and discomfort. The Defendant accepts that the Plaintiff has ongoing back problems but says they are not preventing him from participating fully in his school life and have very limited prospect of impacting his future life and employment opportunities. 7. In my opinion, the case can be decided by answering the following questions: 1. By reference to s 5B of the Civil Liability Act 2002 (NSW) ("CLA"), what is the relevant risk of harm? 2. What happened on 24 July 2019? 3. How much sand was in the landing zone at the time of the relevant jump? 4. If it is possible to answer question (3), was that amount of sand sufficient "precaution" as that concept is understood in the CLA, so that a failure to have extra sand amounted to a breach of duty of care by the Defendant? 5. Is s 5I of the CLA an answer to the Plaintiff's claim? 6. If there has been a breach of duty of care, did it cause any significant injuries or disabilities to the Plaintiff or at all? 7. What is the quantum of any damages to which the Plaintiff may be entitled, including the quantum of any future economic loss? Risk of injury 1. As the claim is governed by the provisions of the CLA, it is necessary for me to first, identify what was the relevant "risk of harm", and then to consider what precautions ought reasonably to have been taken by the Defendant to minimise that risk of harm, taking into account the matters set out in s 5B(1)(a)-(b). 2. Because s 5B is concerned with precautions against a risk of harm, it is essential to identify the relevant risk of harm before considering and without being distracted by questions of breach. The Plaintiff pleads the "risk of injury" as follows: "The plaintiff was exposed to an elevated risk of injury in making a long jump into a pit that contained an inadequate type, depth, and amount of sand to absorb the impact of the plaintiff landing after making a long jump". 1. Accepting that the reference to risk of injury is intended to be a reference to the statutory question of risk of harm, the Plaintiff's case is that the relevant "risk of harm" is the risk involved in participating in the sport of long jump where any attempt by a person to jump as far as they can carries with it a risk of being injured upon landing. 2. The Defendant accepts that the relevant risk of harm is the inherent risk to anyone involved in long jump type competitions, being injured upon landing. I consider that the appropriate characterisation and I proceed upon the basis that is the risk of harm. The alleged precautions not taken 1. As pleaded, the Plaintiff alleges the following precautions were not taken: "(a) Failing to ensure the pit was adequately covered when not being used; (b) Failing to inspect the pit prior to each session to ensure that it contained an adequate amount of sand to facilitate injury-free landing; (c) Failing to inspect and rake the pit prior to each session to ensure that the sand was evenly distributed to facilitate injury free landing; (d) Failing to inspect the pit prior to each jump to ensure that it contained an adequate amount of sand to facilitate injury free landing; (e) Failing to inspect and rake the pit prior to each jump, if necessary to ensure that the sand was evenly distributed to facilitate injury free landing; (f) Failing to ensure that the sand in the pit was silica sand;" 1. Ultimately, the allegations concerning the failure to cover the pit and use "silica sand" were not pursued. The case therefore boils down to an allegation that the Defendant failed to take reasonable steps to make sure there was "adequate sand" to facilitate "injury-free landing". Both of those phrases beg a number of difficult questions and mask a level of complexity in the resolution of the matter. What happened? 1. The Plaintiff gave evidence as to his recollection of what occurred on the day, as did two teachers, Ms Remenyi and Ms Nero, who I accept were present on the day and were supervising the students activity. 2. The teachers do not recall anything out of the ordinary occurring on the day. They remember that the Plaintiff was involved in the event but have no memory of him or anyone else suffering or reporting any injury or adverse incident to them on the day. They, and the deputy principal Mr Tan, gave evidence, which I accept, that at the start of each athletics season, sand was ordered and delivered to the school so as to fill up the pit and this had occurred that year of the incident. This evidence is corroborated by an invoice and delivery docket for sand on 20 June 2019. Ms Remenyi gave evidence, albeit vague, that she considered on the day that there was enough sand in the pit for it be safe for use by primary school children. 3. There is a contest between the parties as to the effect of the teachers' evidence. On behalf of the Plaintiff, it was submitted that I could not find, based on the teachers' evidence, that they had taken any steps to satisfy themselves as to the amount of sand in the pit. It is true that neither teacher was asked directly, nor gave any direct evidence, to the effect that they looked at the level of sand in the pit, measured it in some way, and came to a conclusion. However, I think to expect evidence at that granular level of detail from witnesses recalling what happened on a day which, as far as they were concerned, was wholly unremarkable, some 4 years after the event, is unrealistic. It is inevitable that the best such a witness will be doing is a reconstruction based on their usual practice. 4. The strong impression I got from both teachers' evidence was that they were well aware of the purpose of the sand, being to cushion the landing of the children and prior to the event being commenced and throughout, they, without conducting some form of formal measurement, as a matter of subjective opinion, formed the view that the amount of sand in the pit was adequate. How much sand was in the pit at the point the Plaintiff landed? 1. The Plaintiff's recollection is that, on about his fifth or sixth jump, he landed on his feet in the sand but immediately felt that his feet hit a hard surface below the sand, he then fell backwards on to his bottom or back or both, and immediately felt significant pain in his back. 2. I have no hesitation in accepting the Plaintiff's evidence as honest. He presented as an extremely impressive young man who did not appear to be overstating any aspect of his evidence and was doing his best to honestly recount what he remembered of the day. 3. Part of that evidence is that, at some point in the day, he noticed that the level of sand in the pit was approximately 10 cm below the top. I admitted that evidence as lay opinion evidence, but indicated at the time that how much weight he could be given will depend on what other evidence was adduced in the case. As it turned out, there is no other direct evidence before me as to the depth of sand at the time of the relevant jump, other than perhaps the teachers' conclusionary opinion that it was adequate. 4. Whilst I accept that the 10 cm estimate is the Plaintiff's best and honest estimate or opinion, I really do not think in the circumstances of a 16-year-old boy giving evidence as to something he estimated based on observation, as a measurement some four years earlier is sufficiently reliable to reach the level of satisfaction required to make a positive finding. The best I can do with the Plaintiff's evidence in this regard is to find that the sand was not up to level with the lip of the pit. How far below that level it was on the day is something about which I just cannot make a finding. 5. The other aspect of the Plaintiff's evidence, which was in common with the evidence of the teachers, is that one of the students was delegated the task of raking the sand between jumps. It was made clear by all the witnesses that the raking did not occur between each jump, but after every few jumps. This was because there was no need for the sand to be used as a way to measure where a participant had landed, because that was being determined by eyesight based on the position of cones. 6. The real question is how much sand was in the pit at the points the Plaintiff landed and then fell. The Plaintiff puts the case in two ways. The Plaintiff says that there simply was not sufficient sand, and in the alternative, or perhaps combined with the first proposition, says the sand was not being raked in such a way, so as to cause it to be of an even depth. On either of those findings, the Plaintiff says that inadequate precautions were taken. 7. A significant difficulty with the Plaintiff's first proposition is the evidence as to how deep the pit itself actually was. A photograph which became 'Exhibit U' shows the pit as of present time. The evidence is that it was in this same condition at the time. The photograph shows the pit cleared to the bottom, with a tape measure indicating that the depth of the pit is about 35 cm deep. Even accepting that the tape measure does not appear to be perfectly straight, it is entirely clear that the pit is at least 30 cm deep, probably closer to 35cm. 8. Even if one accepts the Plaintiff's evidence at its highest, that would mean that there was 20 cm of sand, combined with "Softfall" material, in the pit so as to cushion his landing and fall. If I proceed on the basis that the pit was not filled to the top but do not accept the 10cm estimate, then the sand was probably about 30cm deep. On the Plaintiff's own expert's opinion, that is adequate. Were adequate precautions taken? 1. The evidence of the deputy principal of the school, Mr Tan, combined with an invoice showing sand was delivered, puts paid to the notion that the long jump event was being conducted in a kindergarten sand pit. True it is that the pit doubled as a sand pit for kindergarten children, who no doubt conducted large-scale excavation games using toy trucks and the like, thus reducing the amount of sand over time. I accept Mr Tan's evidence and find that, before each athletics season, sand delivery was organised, and the pit filled up to be ready for athletics competition. That happened in 2019 with the invoice and delivery docket bearing the date 20 June 2019. As I have explained, the two teachers who were supervising on the day both gave evidence, albeit vague, that they formed an opinion that there was sufficient sand in the sandpit. I accept that evidence. I am satisfied that both teachers were conscientious and concerned for the safety of the children. I think it inconceivable that they did not consider the question of safety on the day and accept they were of the opinion that there was sufficient sand. That opinion is, of course, not determinative of the fact. The question must be decided objectively, but none the less the opinion formed by the teachers on the day is a relevant precaution of itself and is relevant to my resolution as to that objective fact. 2. A second, but related hurdle for the Plaintiff's case to overcome is that the only evidence as to how much sand is necessary in the circumstances to amount to an adequate precaution against the risk is Mr William's evidence. 3. Mr Williams gives evidence as to what he considers to be a universal standard for all long jump pits being used in competition, regardless of whether they are to be used in the Olympic Games or by young children at school. He was not cross-examined. I do not accept his universal opinion. It seems to me axiomatic that the amount of sand considered to be adequate for primary school children in NSW trying out for the school athletics carnival before school is going to be less than for adults in an international competition. In any event, I consider the sand was probably about 30cm deep and thus meets Mr Williams' exacting standard. 4. When considering the question of whether a precaution is adequate, the actual question posed by s 5B(2) of the CLA is whether a reasonable person in the circumstances would have taken the suggested precautions against the risk of harm, taking into account, amongst other things, the probability that the harm would occur if the precaution was not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity. 5. There is great social utility in primary school students being able to participate in as many sports as possible. The burden of ensuring that a long jump pit at a primary school is always at least 30 cm deep is perhaps not great but is a burden. More importantly, the probability of a not insignificant injury being suffered by a primary school child if the sand is not at least 30 cm deep is, on the medical evidence, remote. 6. I am satisfied the Plaintiff did suffer a significant spinal injury as a result of the way he landed. However, I think the risk of that sort of injury, as opposed to a minor injury such as a bruise or perhaps a twisted ankle, being suffered by a primary school child in the circumstances was highly unlikely. 7. Dr Bodel's evidence was that, whilst he considers it probable that some form of trauma caused by the incident has caused the disc problem that the Plaintiff now suffers from, he explained that, whilst disc injuries in young children is very rare, they can occur with minimal trauma, sometimes just from jumping around, putting on seat belts, coughing, or turning awkwardly. What that tells me is that it is not possible to infer from the fact that a significant injury was probably occasioned to the Plaintiff's back by the way he landed, that there was anything wrong with the precautions taken by the school and, in particular, that there was not sufficient sand in the pit. 8. In seeking to prove that there was "inadequate sand…", the Plaintiff's counsel places significant weight on what is contended to be the proper application of the principle of law known as "res ipsa loquitor". 9. I do not think that the various cases that have sought to explain that principle have much application here. More to the point, I do not consider that the principal is anything other than the proposition that, in some instances, the facts of what happened can of themselves be sufficient to shift the evidentiary burden onto a Defendant to demonstrate why what occurred was not due to the Defendant's negligence. 10. The principle explained in cases like Scott v London St Katherine Docks Co (1865) 159 ER 685; Mummery v Irvings Pty Limited (1956) 96 CLR 99 at [114]; and GIO (NSW) v Fredrichberg (1968) 118 CLR 403, is to the effect that, if in the ordinary course an event could not happen if the person in control of the situation had exercised proper care, then an inference is available as an evidentiary matter that the person did not exercise proper care. 11. There are a number of reasons why I do not think that principle has application in this matter. Firstly, in the context of injuries occasioned to schoolchildren whilst undertaking sporting and play type activities at school, the fact that a risk was foreseeable, preventable, and in fact eventuated, does not mean there was any negligence: see for example Phillis v Daly (1988) 15 NSWLR 65 at [74]. Even prior to the CLA, all that is required of a person in control is to take "reasonable care". A school is not absolutely liable for injuries sustained by pupils when they are under the supervision of their teachers: see for example The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 ("Trustees of the Roman Catholic Church"). What this means is the fact the Plaintiff was injured doing long jump at school does not, of itself, prove failure by the school to take reasonable precautions. 12. Secondly, If one accepts the Plaintiff's opinion that when he landed his feet connected with the bottom of the pit rather than were cushioned entirely by the sand thus causing his feet to slide and for him to fall backwards and land heavily, that also does not of itself bespeak a failure by the teachers to take reasonable precautions against the risk. This is because it does not, of itself, prove that the level of sand was inadequate, but more to the point, does not prove that reasonable precautions were not taken. I am satisfied that the teachers, conscious of a need for adequate sand being in the pit, considered that question and formed a view that the level was adequate. In the circumstances, I consider that precaution to be adequate. 13. Finally, I have not overlooked the Defendant's submission that the focus on the amount of sand in the pit may be a distraction. The bottom of the pit was in fact made of "Softfall" material which is material designed to cushion falls and is commonly used in playgrounds. As the Defendant reminds me, there is no evidence at all that such a surface (which itself amounts to a significant precaution against the risk) was in any way inadequate. 14. As to the suggestion that not enough raking was done so as to keep the sand depth even, I consider giving children that task under the direct supervision of teachers was an adequate precaution. Resolution as to liability 1. I am not satisfied that the Defendant failed to take adequate precautions against the risk of harm. In particular, I am not satisfied that there was inadequate sand in the pit, so as to lessen the chance of the Plaintiff being injured, nor am I satisfied that the use of the "Softfall" material would itself have been insufficient. 2. In reaching this conclusion, I have taken into account that, whilst the risk of a primary school child being injured in some way by engaging in the long jump activity is foreseeable and whilst the risk of some minor injury is not insignificant, the risk of serious injury is remote. I am satisfied that the school took reasonable precautions against that risk by obtaining a new supply of sand so as to put further sand in the pit, having the activity of the children supervised by teachers, who formed an opinion as to the safety on the day, and supervised the event, including the raking of the sand, so as to ensure the sand was raked after every second or third jump. 3. I do not think the standards expected of teachers at Neutral Bay Public School, when supervising a preliminary long jump event before school to work out which children should compete in the school carnival, should, or can sensibly, be compared to what a person in charge of an international athletics meeting might do. Taking into account that the probability of serious harm being occasioned to a child is highly unlikely and, whilst there are no particular burdens in the school taking precautions to avoid the risk, I do think that if some counsel of perfection is required of the school, so as to mimic the standard of a high-level athletics carnival. To expect such a standard would ultimately have the effect of reducing the likelihood of schools providing athletics opportunities for children, which would have a significant diminution in the social utility of ensuring that schoolchildren engage in competitive or non-competitive sport and games. 4. There are a raft of cases which stand as authority for the proposition that there will always be unfortunate circumstances and injuries suffered by children at school or at play, even when there has been every reasonable precaution taken to prevent such outcomes. Every sport or physical activity carries with it a foreseeable risk of injury. Yet our society accepts that it is most desirable for children to acquire skills in sport and physical activities. Games and activities such as long jump are ordinarily part of the school curricula and this is so despite the fact that it is foreseeable that participation in the game, even when carefully organised and supervised, can lead to injury, sometimes even very serious injury: Trustees of the Roman Catholic Church. 5. I am not satisfied that the Plaintiff has proved that the Defendant failed to take such precautions that a reasonable person in the teachers' position would have taken (s 5B(1)(c)). To the contrary, I am positively satisfied that, in the circumstances, the teachers did take all steps that a reasonable person in their position should have taken, especially taking into account the matters enumerated in s 5B(2). I consider what occurred here to be an unfortunate accident that caused the Plaintiff to be significantly injured, notwithstanding that all reasonable precautions to prevent that occurring had been taken. 6. For those reasons, the Plaintiff's case on liability fails. Inherent Risk 1. Section 5I of the CLA provides that there is no liability in negligence for harm suffered by a person as a result of materialisation of an inherent risk. 2. "Inherent risk" is defined in the CLA as something occurring that cannot be avoided by the exercise of reasonable care and skill. 3. The Defendant's submission in this regard is that that there is an inherent risk of injury to anyone involved in the sport of long jump. That risk of harm cannot be avoided by the exercise of reasonable care and skill. 4. It seems to me in this case, that there is a significant and confusing overlap between the Defendant's case that it took adequate precautions to prevent serious injury, and that no adequate precautions could have been taken to avoid these types of injury. If the second proposition is right, the first proposition must be wrong. No doubt this is why it is generally considered appropriate to deal with the question of inherent risk prior to considering whether reasonable precautions were taken against that risk: see Paul v Cooke (2013) 85 NSWLR 167 at [180]. The distinction between whether a risk of harm is inherent in that it cannot be avoided, notwithstanding all reasonable steps being taken, and a risk of harm against which reasonable precautions ought be taken, is obscure: see Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454. In this case, I think, whilst there obviously is an inherent risk in the sport of long jump, there are, as I have identified and as I think was common ground between the parties, reasonable precautions that can be taken to, perhaps not completely avoid the risk, but certainly to greatly reduce the chances of the risk eventuating. 5. In those circumstances, I prefer to decide the matter by the root of a finding that I am not satisfied that the Defendant did not take all reasonable precautions against the risk of injury. What injuries were caused? 1. Against the possibility that this conclusion is wrong, I will determine the related questions of causation and damages. 2. The Plaintiff's particulars of injuries and disabilities are as follows: A. PARTICULARS OF INJURIES RECEIVED 1. Injury to lower back. 2. A 17 mm transverse annular tear at L4/5 resulting in the left disc prolapse and cartilaginous end plate injury 3. Oedema in the left L4 nerve. 4. Narrowing posteriorly at L4/5 and L5/SI. 5. Chronic 2mm (craniocaudal) incomplete pars fracture involving the inferomedial cortex of the left pars intraarticular. 6. Active appearing periarticular bone marrow odema in left L5/S1 facet joint. 7. Mild diffuse bone marrow oedema contiguous from the region into the region of the left L5/S1. 8. Active bone stress oedema involving the L5 process 9. Low grade strain oedema of the inserting paravertebral muscles B. PARTICULARS OF CONTINUING DISABILITIES 1. Pain in lower back especially during and after exercise. 2. Pain in lower back aggravated by bending and twisting. 3. Pain in lower back flaring up for a week every two weeks. 4. Muscle spasm aggravated by injury. 5. Dull ache even at rest. 6. Tenderness of lower back on palpation. 7. Inability to run or flex back without pain inhibiting participation in rowing and association football both at school and at club level jeopardising future scholarship eligibility. 8. In ability to participate in school athletics squad and basketball. 9. Inability to cycle for a distance. 10. Uncomfortable when sitting in class and studying at home. 11. Limited ability to concentrate due to pain. 12. Inability to attend physical education classes and to carry heavy schoolbooks. 13. The need to wear a brace with attendant inability to breath heavily and walk freely. 14. Restricted duties at cadet training. 15. Lack of ability to take part in the physical aspects of teenage socialising. 1. Evidence was called from Dr James Bodel on behalf of the Plaintiff, and Dr Frank Machart on behalf of the Defendant. Dr Bodel gave evidence before me and was cross-examined. There was also a volume of other medical records. 2. There is no doubt that the Plaintiff did suffer significant back injury and pain immediately following the incident. He attended his local GP who sent him for an x-ray which showed no abnormalities. 3. Thereafter, the Plaintiff's evidence, which I accept, is that he suffered ongoing back pain, although it did not stop him from successfully completing in numerous sporting events, both at primary school and, to this day, in high school. During the intervening years, he has participated successfully in athletics (including long jump and high jump and shot putting), basketball, soccer, and in more recent times, rowing, where he recently competed for Shore in the third four in the 2024 Head of the River. 4. In December 2022, the Plaintiff suffered some sort of acute back issue at either an athletics carnival or a soccer game, which led him to North Shore Hospital emergency department, where he underwent an MRI scan on his spine. 5. Both Dr Bodel and Dr Machart have reviewed that scan, and their opinion is not far apart. 6. Both Dr Bodel and Dr Machart agree that the MRI shows significant pathology at the L4/5 level. There is a significant disc prolapse centrally and to the left-hand side. There is a measured 17 mm annular tear in that area. Dr Bodel considers this pathology is the consequence of trauma from the long jump incident in 2019. 7. Dr Bodel also strongly suspects the cartilaginous endplate fracture in that region caused by the episode in the long jump pit on 24 July 2019. 8. There is also a "pars defect", which is unlikely to have been caused by the incident and may be the cause of some symptoms. 9. Both doctors consider that, on the balance of probabilities, the significant structural injury to the Plaintiff's lower back was caused by the long jump incident, but that the various fractures, including the pars defect, were probably not caused by that event. 10. Both doctors agree that, because of the lengthy time delay between the trauma and the scan, it is impossible to attribute what symptoms the Plaintiff is now suffering from to the disc issue, as opposed to the other issues which he has in his spine which are unrelated to the injury. 11. I find that, as a direct result of the hard landing in the long jump, the Plaintiff, quite unusually for a boy of his age, did suffer significant structural damage to his L4/5 disc which caused him pain and suffering at the time, has caused permanent structural damage to his spine, which will not resolve and will cause ongoing, intermittent pain. This has, to some limited extent, interfered with his with his ability to enjoy life to date and will continue to do so. Whilst the legal question of causation here is difficult, and I do accept that the Plaintiff may have suffered the same injury whatever the Defendant did, on balance, I think if there was insufficient sand in the pit, that probably materially contributed to this injury. Damages 1. To the Plaintiff's credit, he has been remarkably dedicated to his various athletic endeavours, remains a keen sportsman, has managed to compete at a high level as a schoolboy rower, with some success this year, and hopes to continue to compete as a rower. He is doing extremely well academically, he is still the bright, enthusiastic, and successful boy who has now matured into an extremely impressive young man. Whilst neither doctor recommends a life of hard labour for him, I think it is highly unlikely that the Plaintiff was ever destined for such a working life. He is bright, motivated, charismatic, and ambitious. He has shown remarkable fortitude and dedication to rise above his back problems to date and I consider it very likely that he will continue to succeed at most things he is motivated to do well in. That all being said, the injury is significant, permanent, causes pain, and has and will continue to live with adversity which he will need to cope with. 2. The Plaintiff claims a general and very non-specific diminution in earning capacity based on him having to live life with a bad back. 3. I am not satisfied, on the balance of probabilities, that he will suffer any diminution in earning capacity. I do accept that he will suffer ongoing pain and suffering which will be intermittent, and from time to time may cause him reasonably acute problems. As Dr Bodel explained however, if he continues to maintain his fitness and keep his weight under control, he will be able to cope. Having regard to his character I think it is highly likely that he will succeed in that regard, he should be able to live a good and full life. Nonetheless, I have built into my assessment of noneconomic loss damages, an amount for that ongoing pain and suffering. 4. As to out-of-pocket expenses to date, some will have been incurred by his mother. There will be some in the future, but the state of the evidence is such that I would be doing no more than guessing if I was to find any amount. 5. As to gratuitous domestic care, I do not think any damages are available for the fact that he now does not help out in the garden. Assessment of damages 1. Against the possibility that I am wrong in relation to liability, I would award the Plaintiff the following: 1. Non-economic loss – 20% of the worst case. 2. Past out-of-pocket expenses – nil. 3. Past loss of income – nil. 4. Future out-of-pocket expenses – nil. 5. Past domestic care – nil. 6. Future domestic care – nil. 7. Future economic loss – nil. Conclusion 1. My orders are: 1. Judgment for the Defendant 2. The Plaintiff to pay the Defendant's costs. 3. Grant leave to either party to apply to vary the costs order, providing such application is sent to the chambers of Judge Newlinds SC by the close of business on 11 October 2024. ********** 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: 04 October 2024