District Court New South Wales Medium Neutral Citation: AX by tutor ZX v Ashfield Municipal Council [2012] NSWDC 32 Hearing dates: 22 and 23 February 2012 Decision date: 03 April 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for $305.55. (2) Costs reserved. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days. Catchwords: TORT - personal injury - child injures toe in swimming pool - subsequent claim of mental harm due to claim of inability to play football - whether ongoing disabilities include a claim for mental harm - s 32 Civil Liability Act 2002 (NSW) - quantum of damages for injury Legislation Cited: Civil Liability Act 2002 (NSW), ss 5N, 5R, 27 and 32 Limitation Act 1969 (NSW), ss 50C, 50D and 50F Cases Cited: Bourhill v Young [1942] 2 All ER 393 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 H G v R (1999) 197 CLR 414 Hollier v Sutcliffe [2010] NSWSC 279 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Oosten v Nominal Defendant [2005] NSWCA 61 R v Kneipp [1975] Qd R 1 R v WR (No 3) [2010] ACTSC 89 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178 Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of NSW (2010) 241 CLR 60 Woods v DPP (WA) [2008] WASCA 188 Texts Cited: - Category: Principal judgment Parties: Plaintiff: AX Plaintiff's tutor: ZX Defendant: Ashfield Municipal Council Representation: Plaintiff: Mr G Hickey Defendant: Mr R Gambi Plaintiff: Bolzan & Princi Defendant: DLA Piper File Number(s): 2011/79773 Publication restriction: None Judgment 1The plaintiff by statement of claim filed on 11 March 2011 claims damages for negligence against the defendant, the owner/occupier of the Ashfield Swimming Pool. The plaintiff, who is currently 16 years of age and in Year 11 at high school, lacerated his left big toe on a broken tile on the floor of the pool on 27 October 2007. 2The plaintiff being a minor, these proceedings have been commenced on the plaintiff's behalf by his tutor (his mother). The statement of claim asserts that the negligence of the defendant caused the plaintiff to suffer injuries not limited to the laceration to his left big toe (which required three stitches at the local hospital), but a consequential psychiatric injury, triggered by the impact of the injury on his school boy football career from 2007 to date. The pleadings in these proceedings and the issues to be determined 3The statement of claim brings an alternate claim in contract which was not pursued at the hearing, or the subject of submissions. 4Breach of duty of care in relation to the circumstances of the accident, insofar as it resulted in injury to the plaintiff's left big toe, is admitted. The defence filed on 23 August 2011 raises issues pursuant to s 5N Civil Liability Act 2002 (NSW) (recreational activity) and a claim of contributory negligence pursuant to s 5R Civil Liability Act 2002 (NSW), as well as a defence under ss 50C, 50D and 50F Limitation Act 1969 (NSW). No submissions were made as to contributory negligence; the basis upon which liability was contested by the defendant at trial was pursuant to s 32 Civil Liability Act 2002 (NSW). 5In unrelated incidents, the plaintiff and his elder brother were victims of a sexual assault. I have been informed that criminal proceedings in which the plaintiff's elder brother may give evidence are likely. For that reason I have anonymised all reference to the plaintiff's name and to identifying features such as his home and current school. 6The issues which I have been asked by the parties to determine were helpfully summarised by Mr Gambi in his oral submissions as follows: (a)Whether the plaintiff in fact suffers any ongoing disabilities as a result of the injury he suffered on 27 October 2007; (b)If so, was there a duty of care in relation to mental harm and was any such injury reasonably foreseeable, having regard to the provisions of s 32 Civil Liability Act 2002 (NSW); and (c)Quantum issues. The circumstances of the plaintiff's accident 7The plaintiff went to Ashfield Swimming Pool with family members on 27 October 2007. While he was in the shallow end of the pool, he suddenly noticed a great deal of blood in the water and felt his left toe throbbing. He screamed for help and the lifeguard came to help him out of the water. The plaintiff later told his psychologist, Ms Rose Cantali, according to her report of 10 August 2009, that he had "a huge hole in his toe". He was taken to Concord Hospital, where the discharge notes suggest that the cut was caused by an object like glass being on the swimming pool mat. 8The plaintiff's laceration was reviewed by the Registrar, Dr Fogg, who put three stitches into the wound under local anaesthetic. Steristrips were applied, as well as a bandage. He was given a seven-day course of medication to prevent infection and advised to keep the area dry for 48 hours. He was also advised to keep pressure off his toe for a few days (Concord Hospital Emergency Department notes, Exhibit B). He was discharged later that same day. 9The plaintiff was upset by the circumstances of the accident, and said that he had difficulty walking on his left foot. He missed time from school. According to the closing submissions made on behalf of the plaintiff, he was absent from school for a month. According to his school records, he was absent for 19 days from January to June 2007, which should be subtracted from the total of 40 days for the period January to November 2007 (Exhibit A); as he had other days away prior to the October accident, the actual period for which he was absent as a result of this injury was probably less than a month. 10The plaintiff described the impact of his physical injury as follows: "Q. You see the case is isn't it that this was a very minor incident that occurred in the pool wasn't it? A. Yes. Q. You went to hospital, you had three stitches in it, is that right? A. Yes. Q. You basically got over it didn't you? A. The physical yes. Q. And you really could have played sport if you wanted to couldn't you? A. No." (T 32) 11Counsel for the plaintiff referred in his closing address to the plaintiff having used crutches. He had certainly used crutches in relation to an earlier accident on 17 March 2007 (T 15, 74), when he had injured his right big toe, and he was given a certificate for absence from school for the period 13 to 16 March 2007 for this accident (see the plaintiff's amended chronology, page 2). However, neither he nor his mother said in their evidence that crutches were required after the accident the subject of these proceedings. 12The plaintiff went to see his local doctor on 30 October 2007, and on 6 November went back to have the sutures removed. He did not consult his doctor again about this toe until 7 March 2008, when Dr Marinucci records the plaintiff complaining that the scar was "sore when plays sport". On 26 July 2008, he complained of having a painful right big toe. Since he injured both his left and right big toes during 2007, it is unclear whether this is a typographical error, or a reference to his March 2007 injury to his right big toe. I shall assume for the purposes of these proceedings however, given the report of Dr Hollinshead, that this is a typographical or comprehension error by Dr Marinucci, and that the plaintiff was in fact complaining about his left big toe. 13Dr Marinucci wrote a referral letter on 19 March 2008. It is unclear why nothing was done about this until the second visit to Dr Marinucci on 2 July. In any event, Dr Hollinshead provided a report on 13 August 2008 as follows: "Many thanks for asking me to see [the plaintiff] who is a young chap who cut the plantar surface at the base of his great toe in the skin crease while running around the pool at Ashfield. It appears he cut it on a piece of sharp tile at the pool. He required 3 stitches and they were placed here at Concord Hospital in the emergency department. The wound has healed up extremely well and on examining it I had a lot of trouble actually seeing where the cut was. There was no induration, there was no focal tenderness and there was no obvious abnormality that I could see within the wound. However [the plaintiff] does have a sensitive wound and I suspect this is the result of minor neuromas in the cuts surface which can give him a rather sensitive, uncomfortable wound. These particularly occur in the hands and feet around the digits. As I understand from the hand surgeons there are ways of desensitising these to some extent, but I am not familiar with what is involved. It may be worth getting a further opinion from someone like Dr David Dilley who is a hand surgeon or maybe one of the neurologist who might be able to advise how to manage these sensitive wounds and try and get them to settle down a bit more for him. I would not recommend that the wound be re excised or explored. I have made no specific arrangements for a referral for [the plaintiff], but I have asked mum to come back and discuss it with you as to whether you have any suggestions as to who may be best to see him in terms of ongoing management." 14On 4 November 2008, the plaintiff again attended Concord Repatriation Hospital in relation to foot injuries. The circumstances were described in the hospital notes as follows: "Jumped off a first storey building and landed on foot yesterday. Has walked on it since. Complaining of pain to lateral malleolus. On examination patient was walking with crutches. Tender 1 cm above lateral malleolus on left foot. Left hip and knee normal. No obvious foot swelling. No plantar or calcaneal tenderness. X-ray of left ankle showed no fracture." 15The plaintiff went to see Dr Marinucci the next day. The doctor recorded the injury to the plaintiff's left foot but made no comment about pain in either of his toes. 16On 19 November 2008, Dr Ronald Clark, an orthopaedic surgeon, saw the plaintiff in relation to the foot sprain who said as follows: "I reviewed [the plaintiff] today with the aid of his mother. He was complaining of pain around his left lateral malleolus. There was no swelling or deformity today and the joint was stable. The areas of tenderness were rather vague on occasions. I sent him for CT of the ankle which was normal with no evidence of a fracture line. I have advised his mother about appropriate elevation with exercises at home and he is soon for review. I do not feel that more active intervention is required at this stage. There possibly has been a tiny fracture or a ligament problem but this should fully heal. It would be possible to perform a bone scan or MRI but hopefully this can be avoided." (p 58 of the defendant's bundle, Exhibit 2) 17On 3 December, Dr Clark noted the CT of the plaintiff's left ankle did not reveal any fracture but that he was still complaining of pain and an MRI has been arranged. Neither of these reports referred to any problems with the plaintiff's left big toe. 18On Monday 1 December 2008, Dr Lyons of the Sydney West Plastic & Cosmetic Surgery Centre provided a report to Dr Marinucci who stated as follows: "Thank you for referring [the plaintiff] to see me following a laceration on his foot in October of 2007. I understand he was sutured at Concord Hospital with three sutures. Since then he has noticed some ongoing discomfort associated with his great toe. This becomes particularly evident on walking. On examination this patient demonstrates evidence of a well healed scar at the base of his great toe. He notes some slight decreased sensation bilaterally of the distal toe, possibly consistent with underlying partial injury to the underlying digital nerves. He does, however, have good protective sensation and normal pseudomotor function evident. Range of movement of his toes seems to be within normal limits. I have discussed with [the plaintiff] and his mother today that I feel this laceration is well healed. The discomfort may well possibly be associated with some underlying scar. I do not feel that any intervention is warranted. The slight sensory abnormality he has noticed may well be associated with some minor injury to the underlying digital nerves but he has good protective sensation and this is not amenable to surgical management. I have discharged him from further follow-up. Thanks very much again for your referral." 19The plaintiff had no further treatment. He was subsequently seen by a neurologist retained by the defendant, Dr Ross Mellick, on 31 August 2011 who noted the following history: "I understand that he is not restricted with regards to his walking and that he wears normal shoes. He assists his mother with the shopping, carrying the parcels. The past medical history includes an injury to his right hand resulting from punching a wall on 13/01/10. There was a past history of a fracture of the distal radius in August 2009. I note that he had X-rays of his left ankle and foot, the examination being requested with the history that he "jumped off a single storey building yesterday and landed on feet... today finding it painful to walk... using crutches... tender 1cm above lateral malleolus of the left foot." Additional history was noted in the General Practitioner's notes of 17/03/07, 17/07/07, 15/09/07, 27/10/07, 30/10/07 and 06/11/07, which make reference to the injury. These indicate the absence of evidence of infection and the removal of the sutures. A tender scar was described to be present below the left big toe. The General Practitioner made reference to the toe being "sore" when playing sport. A comment dated 26/07/08 made reference to the left big toe still being painful and comment was made by the General Practitioner on 05/11/08 regarding pain in the left foot and left lateral malleolus after he jumped off the first storey building. I have a report from a Surgeon dated 13/08/08 which makes reference to the laceration of the toe. The doctor comments that the wound had healed well and that he had ..." a lot of trouble actually seeing where the cut was." He reported no induration and no focal tenderness or obvious abnormality (report prepared by Dr John Hollinshead dated 13/08/08). I note a report from a Plastic Surgeon dated 01/12/08 that makes reference to a scar at the base of his great toe. The doctor records an examination and comments that the laceration is well-healed. Referring to the physical examination he does not specify which toe was in fact injured. I have a report from a Psychologist which makes reference to his inability to play sport. She draws attention to the importance of his previous achievements in sport, which would seem he had abandoned, these achievements helping him with regard to his self-esteem and self-respect." 20Dr Mellick noted the following on examination: "There was no abnormality of the lower extremities and, in particular, I was not able to identify a scar on the toe. [The plaintiff] indicated to me the site of the laceration, however pressure there did not evoke pain indicative of the presence of neuroma. There was normal superficial and deep sensation bilaterally and unimpaired two point discrimination of the plantar aspect of the great toe. There was no abnormality with regard to the range of hip, knee or ankle movement. Toe movements were also full and unimpaired. There was no abnormality of contour, posture, tone, power production, coordination or sensation. The deep tendon reflexes were all present and symmetrical. There was no abnormality in his ability to run on the spot." 21Dr Mellick concluded: "I do not identify any significant impairment of toe, foot or lower extremity function. I also identify no basis to regard the prognosis to be guarded or unfavourable. It may be that [the plaintiff] is cautious with regard to performing sports such as football. However, appropriate management is for him to be encouraged to do so as there is no identifiable physical impediment preventing him." 22That is the totality of the treatment that the plaintiff had for this physical injuries. In March 2009 he was, however, referred to a psychologist, Ms Rose Cantali, and has continued to be treated by her since that time. The reason for this referral, according to Ms Cantali, is that the plaintiff was, he said, unable to play football at school from October 2007 onwards, and the impact that this had upon him and upon his feeling of self-confidence was severe. The plaintiff's oral evidence in this court was that as a result of his ongoing inability to play football, he became the subject of bullying. Football had been a central part of his life, as he had been an elite player in his school, so this had a significant impact on his self-confidence. 23The plaintiff had played football in his school team in 2005 and 2006. All of the evidence points to him being a good football player. He changed teams in 2006 and this appears to have caused some resentment amongst his former team mates, resulting in an incident after a football match where one of them threw a brick at him. However, in 2007, the year in which he suffered the injury, he did not play football at all. It was his mother's evidence that this was substantially due to the plaintiff having fallen behind in his school work and needing to make up time in his studies. It was the evidence of the psychologist (and I note some concessions by the plaintiff's mother as well) that the real reason was that the plaintiff's mother, a single parent with another child who also played sport, was unable to drive the plaintiff to the sports field to play sport and that this was why he did not play football in 2007. Whatever the reason, prior to the accident, for the whole of 2007, the plaintiff had not played any football as part of a school team, for reasons unconnected with the accident. 24The plaintiff's evidence was that he had been looking forward to returning to playing football for his school in 2008. It was not explained why, if his mother had been unable to drive him to sporting activities in 2007, she could do so in 2008, but this clearly was the plaintiff's expectation. However, he said, due to his left big toe injury, he was not able to play at all. The pain arising from his left big toe (as opposed to his right big toe or his left ankle, injured in a separate accident) was such that he was unable to play football. He considered he was unable to play football for at least two years as a result of his toe pain. Since he was a shy boy and most, if not all, of his social interaction was on the football field, the loss of the ability to play football for his school was, for him, according to Ms Cantali and to his mother, a very serious loss. 25The plaintiff's evidence in chief concerning consultation of Ms Cantali was as follows: "Q. You've been seeing a Ms Rose Cantali who is a psychologist. Is that correct? A. Yes. Q. I think you commenced seeing her in June 2009? A. Yes. Q. How often do you see Ms Cantali? A. Once a fortnight. Q. Do you find that that helps you at all? A. Yeah. Q. When you see Ms Cantali you just speak about how you are feeling? A. Yes. Q. You didn't see her for about a year and a half after the accident. Is that correct? A. Yeah. Q. You were referred to her by Dr Marinucci, your treating general practitioner? A. Yep." (T 10) 26The plaintiff said his older brother had seen Ms Cantali in 2009 "but he stopped" (T 20). The plaintiff's mother explained in more detail: "Q. Did he report to you any problems that he was having at school? A. Yes, he did. Q. What did he tell you? A. Because he left his friends from St Joan of Arc they were bullying him because he couldn't play football any more. Q. How long did he report that bullying going on through 2008? A. Well it's been going on. Because he can't play any more and all his friends are like - have been bullying him like saying that he's no good any more at playing and that was his passion to play football. Q. Now in early 2009 you took him out of De La Salle Ashfield, is that correct? A. Yes. Q. And then you put him in Concord, is that correct? A. Yes. Q. Did he report to you - did he tell you how he was going at Concord during the time that he was there? A. Yeah, it was just - he was getting still bullied and--. Q. What was he getting bullied about? A. Well about football and all this other - like, yeah, he was just getting bullied. Q. Ultimately you applied for and he was accepted into [the X School], is that correct? A. Yes. Q. During the period of time - this is in 2008 into 2009 - what did you notice about [the plaintiff] in terms of - what did you notice about him in relation to bullying that he was experiencing and the problems he was having? A. Well it's made him mentally - he's just a different child. Q. When did you first notice he was a different child? A. Since two thousand - well since this has happened to him, since 2007. Q. Did you at some stage decide to take him to someone because of the problems that he was having? A. Yes. Q. Was that Ms Rose Cantali? A. Yes. Q. She's a psychologist? A. Yes. Q. Were you referred there by Dr Marinucci? A. Yes. Q. Just before you were referred by Dr Marinucci what was it about [the plaintiff] that made you think that he might need help? A. Because he was basically coming home just didn't want to do anything, used to go into his bedroom, stay in his bedroom, because he couldn't go out and play anymore, because he wanted to play football and he couldn't do it. Q. Well - go on? A. Yeah, and also because of the way, yeah, he was getting teased." (T 50 - 51) 27The plaintiff's mother said that since this incident, her son had been a different child, and that whereas before he used to go to school and play football, he had now "changed" (T 53), which was why she had taken him, on referral from their family doctor, to see Ms Cantali. The plaintiff's treatment by a psychologist 28Ms Rose Cantali has provided six reports (10 August 2009, an undated report apparently received1 February 2010, an undated report received on or about 17 January 2011, 15 March 2011, 29 November 2011 and 16 February 2012). 29Although Ms Cantali's evidence was described by counsel for the plaintiff as that of a treating specialist, her first report of 10 August 2009 is addressed to the plaintiff's solicitor. She told the court during her evidence that she commenced seeing the plaintiff on 10 August, and it would appear she received a letter or phone call from the plaintiff's solicitors seeking a report before her consultation on that day (T 98). She had, however, seen the plaintiff on a prior occasion (3 June 2009), but there were no notes available for this meeting (T 99). 30 In her first report, Ms Cantali describes the plaintiff as having been referred to her by his general practitioner, Dr Marinucci, by reason of the plaintiff's concerning symptoms; he "was exhibiting symptoms of sadness and was often angry". She considered the problem was that the plaintiff had internalised issues that stemmed from an accident at Ashfield pool on [sic] October 2007" when he injured his toe. He told Ms Cantali "there was a huge hole in his toe" and "the accident left [the plaintiff] with a damaged nerve to the toe which has affected his ability to play sport". 31Ms Cantali states that at the time of the accident, the plaintiff had "enjoyed Rugby and played sport" but that since the accident he had not wanted to play sport "for fear of the pain in his [sic] and it appears that he has developed many problems at school related to his anger". She went on to say that he had developed a number of fears, such as swimming and playing sport, and that "it appears these fears may result from an accident incurred [sic] at Ashfield pool October 2007." She recommended 12 sessions at the APS scheduled fee. 32The next report (a one-page letter) is, like the letter of 10 August 2009 to the plaintiff's solicitors, prepared without the benefit of any reference to the Code of Conduct. Ms Cantali repeats that the incident at Ashfield Pool "damaged his toe and as a result he has never been able to participate in football - a sport that he previously enjoyed and excelled in." Treatment was no longer possible because of his family's "inability to pay". In her professional opinion, this injury to his toe "had a major affect [sic] on his quality of life as well as his psychological state" and she recommended a further 12 sessions at $2,472, as he "urgently" required help. 33In a four-page report which is undated but which was received on about 17 January 2011, Ms Cantali repeats that pain from the plaintiff's toe was "the biggest factor in restricting him from his normal activities which included playing sports at school and being in the top teams". She describes him as a very skilful player who was in the first grade team and as someone who believed his career to be in sport. All this "fell apart" after the Ashfield pool accident, as from then on, he was unable to participate in sport due to his injury, and "began to realise that his toe would not heal" (page 1). He had been excited about attending school in 2007 because he was confident he would be given the chance to play for the school but this opportunity "never occurred" as the plaintiff's toe "never healed". He felt disillusioned, reports from school indicated learning difficulties were evident, and he began to have difficulties with bullying because he did not fit in with the boys who played sport. After his school was changed, there was a slight improvement and then a relapse. 34At this point, according to Ms Cantali, mainstream high school was no longer appropriate for him, because he was unable to participate in sport at a satisfactory level due to his toe, the classes were too large, he could not understand the teacher and catch up, and he was drawn to peers who exhibited challenging behaviours. 35Ms Cantali assessed the plaintiff through clinical interviews and the Achenbach System of Empirical Behaviour Assessment (ASEBA) checklists. She described the test results as showing that he was in the clinical range for anxious/depressed, withdrawn/depressed and social problems. He was in the borderline range for attention, aggressive behaviour and rule breaking behaviour. This was due to the impact of the injury to his toe, which meant he "was unable to reach a degree of satisfaction in himself through sport and subsequently could not cope at school" (page 3). His referral to X School showed the severity of his problems, and these were all "due to the injury incurred at Ashfield pool" (page 4). He now needed to be supported and counselled "throughout high school" and his mother needed professional assistance to support him throughout his school years. 36This is the principal report, and the only report which refers to the Code of Conduct. The next three reports from Ms Cantali are short (1 - 2 pages) and do not refer to the Code of Conduct at all. 37The first of these, a letter to the plaintiff's solicitors dated 15 March 2011, consists of a statement of her fees. The second is an updating report (16 April 2011) restating that the "injuries" the plaintiff suffered at Ashfield pool (page 1) were the cause of his problems. 38Ms Cantali has also provided a reply to reports from Dr Akkerman, the psychiatrist whose medico-legal reports are relied upon by the defendants. Ms Cantali explains that any other person "whether professional or not" would have difficulty diagnosing the plaintiff because of the plaintiff's difficulty "communicating his emotions effectively", which would prevent a "valid diagnosis on his emotional state" (page 1). His emotional state had not yet stabilised. He had been self-harming, and there were deep scars on his wrists. He also reported intrusive thoughts, obsessions and compulsions. A current review of his condition found him to be diagnosed with depression, generalised anxiety disorder and obsessive compulsive disorder as per the criteria in the Diagnostic and Statistical Manual (DSM IV, 2000) of mental disorders (revised 4th edition). Due to the increase and nature of his symptoms, he had been referred to see a psychiatrist and a social worker. 39I shall briefly note the other expert reports tendered on behalf of the plaintiff. Mr Machlin's reports and Professor Hazell's report 40Mr Machlin, a child psychologist, has provided a medico-legal report dated 12 May 2011, as well as a copy of the Achenbach questionnaire the plaintiff completed for him. According to Dr Akkerman, Mr Machlin's report was prepared at the office of Ms Rose Cantali. 41Mr Machlin states that while the plaintiff had problems before the Ashfield pool incident, his overall functioning was adequate and he derived social acceptance from sport. He considered Ms Cantali had outlined a clear justification for ongoing psychological therapy, and that the plaintiff's favourable and willing response to therapy as boding well for future progress (at page 6). He concluded that while the injury continued to feature prominently in the plaintiff's appraisal of day-to-day problems, "a speedy resolution to his compensation case would assist him in his ability to put his memories and regrets behind him and to develop productive coping strategies". 42Professor Hazell's letter of 10 September 2010, a brief note to the X School counsellor stating that the plaintiff is receiving outpatient services at X School and attending the Paterson School Program, was also tendered. Professor Hazell is the supervising psychiatrist of the X School facility (T 92). He states that the plaintiff's clinical diagnoses are oppositional defiant disorder, generalised anxiety disorder and agoraphobia. 43No report prepared by Professor Hazell was tendered on behalf of the plaintiff, but the defendant has tendered notes relating to the plaintiff's diagnosis at X School, a specialist school where psychiatrists and counsellors play an active role in the supervision of the children enrolled. These handwritten notes, dated 3 February 2010 and apparently prepared by Dr Pistilli (Exhibit 2, pp 51-57), the medical registrar, make no reference to the swimming pool incident as playing any role in the plaintiff's problems. I note Professor Hazell's name (Exhibit 2, p 51) appearing on the assessment prepared on 3 February 2010 by Dr Pistilli. 44The defendant tendered reports by a psychiatrist, Dr Akkerman. That report has been replied to by Ms Cantali. Neither Mr Machlin nor Professor Hazell provided reports in reply dealing with the matters raised by Dr Akkerman, the psychiatrist whose evidence is relied upon by the defendant. In addition, in her evidence, Ms Cantali made it clear she disagreed with some of the contents of the 3 February 2010 notes of Dr Pistilli. The evidence therefore falls into three different groups: the plaintiff has normal adolescent turmoil; the plaintiff suffers from the psychiatric problems diagnosed by Professor Hazell, but for the reasons to be found in the notes of Dr Pistilli, which do not refer to the swimming pool incident; the plaintiff suffers from the psychiatric problems referred to by Ms Cantali and Mr Machlin, and Ms Cantali's rejection of Dr Pistilli's findings is to be preferred. These conflicting opinions require careful analysis. The parties' experts' competing views of the plaintiff's disabilities 45In his first report of 20 September 2011, Dr Akkerman was critical of Ms Cantali for failing to carry out a Mental State Examination prior to commencing treatment and providing reports. He notes (page 3) that she did not make a diagnosis, but simply stated the plaintiff had been affected by his accident at the pool and recommended further treatment (page 3). Professor Akkerman made similar complaints about the report of Mr Machlin, including that he had not made a diagnosis (page 3). 46Ms Cantali's subsequent Medical State Examination and diagnosis of the plaintiff, apparently in response to this criticism, is the subject of Dr Akkerman's second report of 18 January 2012. He did not agree with the diagnosis of Depression, Generalised Anxiety Disorder and Obsessive Compulsive Disorder, and in particular noted that he had seen no evidence of the plaintiff having cuts on his arms during the September consultation. He stated, without elaboration, that he considered Ms Cantali was seeking to justify treatment, and this meant she needed to make a finding that the plaintiff suffered from a psychiatric condition (page 5). 47Dr Akkerman is dismissive, in a general fashion, of the abilities of psychologists to diagnose and treat psychiatric conditions. In his report of 18 January 2011 he refers to the lower level of training of psychologists, the lack of examination or other entry criteria, the limitation in training (namely to psychology only and not to medical issues), the ability of psychiatrists to use medication, and the larger number of patients seen by psychiatrists such as Dr Akkerman. 48I am reluctant, without further explanation, to place any weight upon these criticisms. However, Dr Akkerman raises other issues of significance: whether Ms Cantali has the appropriate expertise; Ms Cantali's failure to perform a mental state examination and supply a diagnosis, the reliance on a psychiatric diagnosis which is essentially that of Professor Hazell and failure to expose reasoning for identifying the cause of this condition with the circumstances of the plaintiff's accident, particularly in light of the fact that he had not been playing football for almost a year (i.e. between the end of 2006 and the date of the accident on 27 October 2007) before the injury. 49In addition to any question of whether a psychologist has the appropriate expertise, there is a failure to expose reasoning in accordance with the tests set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ("Makita"). There are also causation issues, in that according to the X School mental health assessment dated 3 February 2010 there had been no previous psychiatric assessments (Exhibit 2, p 54) and the list of features referred to at p 55 of this tender bundle (and indeed elsewhere in the X School mental health assessment documents) do not refer to the trauma of his injury at the swimming pool as playing any role in the diagnosed psychiatric condition. 50Ms Cantali considered the failure of the plaintiff to mention his toe to Professor Hazell or Dr Pistilli to be "irrelevant" (T 135). In cross-examination, she disagreed with many of the issues that Dr Pistill had listed in his notes as being fundamental to the plaintiff's problems. Mr Gambi cross-examined her about the contents of these notes as follows: "Q. "He has a genetic disposition to antisocial" - I think that should be behaviour - "through his biological father and his development is suggestive of disrupted attachment." Just pausing there. Do you agree or disagree with that? A. Disagree with that, I disagree with that. Q. This is people at X School who-- A. Doesn't matter, disagree with it. Q. That's fine. "Recent precipitation is his change of school with limited ability to cope with demands together with recent allegations of sexual abuse by a neighbour." You didn't know about the sexual abuse issue, so you can't agree or disagree with that I assume? A. No, but the change of schools, he was ready to change schools, I don't agree with that because he was transitioned into that, I know that. Q. "Perpetuating factors include his idolisation and interaction with his older brother who has a diagnosis of conduct disorder." You'd agree with that? A. No. Q. Wouldn't agree with that? A. No I don't, I don't agree that he idolises his brother. I agree that he has been taught to respect his brother and love his brother but I do not agree that he idolises his brother. Q. Did he ever tell you he was teased about his height? A. Yes. Q. Did he tell you he was teased about the fact that he can't do anything by himself? A. I can't remember that but that doesn't surprise me. Kids tease for a lot of reasons." (T 135). 51 This meant that Ms Cantali disagreed with most of the factors considered relevant by Dr Pistilli. She explained the absence of any reference by the plaintiff to the swimming pool incident during Dr Pistilli's interview as being because the plaintiff was not "hovering" on this problem. However, Dr Pistilli had the benefit of other sources of information. This included Ms Cantali's letter of 23 December 2009 (Exhibit 2, p. 36), which also makes no mention of the plaintiff's swimming pool injury, although it refers in detail to the problems of the plaintiff's elder brother, in a section Ms Cantali has blacked out. 52Having outlined the areas of dispute in relation to the expert evidence, I shall now set out how expert evidence of this kind should be analysed. The correct approach to expert psychological and psychiatric evidence 53In addition to the criteria for expert evidence set out in Makita, as explained and elaborated upon in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, courts have given detailed attention to the correct approach to psychological and psychiatric reports. This is in part because the descriptions of disabilities such as a broken leg are of a more straightforward nature than the complex workings of the human mind, and in part because of the possibility for error in diagnosis where the doctor is less reliant upon objective criteria such as X-rays and more reliant upon the presentation of the patient at interview, as Ms Cantali acknowledged in her cross-examination. 54I shall outline the nature and extent of the expertise of the psychiatrist and psychologist, and the degree to which each is competent to make a diagnosis of injury. The nature and extent of the expertise 55The first question is whether the opinions expressed fall within the field of expertise; the second is whether the opinions expressed are in fact expert opinions. 56Additional problems may occur where the person the subject of the report is a child. Cases where psychological or psychiatric sequelae to injury have been suffered by an infant need to be considered with care, as the NSW Court of Appeal noted in De Groot (an infant, by his tutor Van Oosten v Nominal Defendant [2005] NSWCA 61 at [16] - [18] and [21] - [22], dismissing an appeal from Gibb DCJ's long and careful analysis of a series of claims of injuries. 57The care which must be taken when considering whether the expert evidence is both within the field of expertise and an opinion of an expert nature is helpfully explained by Refschauge J noted in R v WR (No 3) [2010] ACTSC 89 at [47]. His Honour notes the question may be whether some of the opinions expressed, without any indication that they were otherwise grounded in such specialised knowledge, training, study or experience were, to use the words of Gleeson CJ in H G v R (1999) 197 CLR 414 (at 427 [40]) (at [41]): "A combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist." 58The first challenge to the diagnoses of Ms Cantali and Mr Machlin is whether a psychologist is able both to diagnose these conditions and to link them to the incident the subject of the claim. The second challenge is to whether the evidence (Exhibits B and D) in fact supports these diagnoses. 59As noted above, Dr Akkerman, the psychiatrist retained by the defendant, challenges both the expertise of psychologists in relation to diagnosis of psychiatric injury and also challenges not simply the causation chain but the diagnosis itself. 60Ms Cantali was also cross-examined about whether the results of the Achenbach questionnaire in fact supported the diagnoses of the plaintiff, as the results appeared to fall short of the number required for the diagnosis made. Ms Cantali had stated in her undated report (Exhibit B), prepared at the same time as she administered this test to the plaintiff, that this test's checklists "ask for the respondents to rate the child's behaviour on numerous items" and "allows for a comparison to a behavioural sample of children of the same age". However, she explained to the court: "A. No, what I'm trying to say is the Achenbach doesn't really fit into those areas because of adolescence and the DSM IV is really designed for adults. So what we use, we use the DSM IV as a guide for in terms of diagnosis but we really can't fit it into adolescence and what we're trying to do here is fit - categorise it into teenagers into adult type of diagnosis. I mean when we say the DSM IV with young people, it's not really reliable per se, you know as clinicians we use it as a means of treatment so that's - as I said the DSM IV is mostly for adults so that's why you're not getting the correlation between those two types." (T 125) 61Ms Cantali explained (at T 126 - 7) that the plaintiff did not satisfy the criteria for DSM 4 because he was an adolescent. She agreed that this applied to the findings of Mr Machlin as well. 62Ms Cantali also explained the limits of the test generally, due to its self-reporting nature: "You know if you were to use these - Achenbachs are great because they give you a screening, but when it comes to taking all - everything on them I wouldn't - they're not really reliable because first of all a lot of kids don't want to confront their problems anyway, so you're just reading all these symptoms that [the plaintiff] doesn't have or reported not having, but in actual fact if you look at the situation now, he's had these problems for a long time but he has not reported them." (T 118). 63I do not have the benefit of any comments about the suitability of this test for adolescents. Given Ms Cantali's reservations, it seems to be a test I should view with caution. 64Ms Cantali did, however, affirm the importance of observation. She stated, both in her evidence and in her reports, that she primarily relied upon her observations in interview, and that because the plaintiff had communication problems and did not open up to others, "any person unfamiliar to him, whether professional or not, would find difficulty in obtaining a valid diagnosis on his emotional state without having time to develop rapport" (report, 29 November 2011). 65Dr Akkerman challenged this in his report of 18 January 2011: "In my opinion, it is not difficult to properly diagnose the plaintiff as Ms Cantali suggests. The personality characteristic that Ms Cantali describes might make it harder to get a history from him. But this would not affect his Mental State Examination. There were no abnormalities on Mental State Examination." (page 5). 66Dr Akkerman is considering the plaintiff in light of the injury, his being a medico-legal report. Nevertheless, he has concluded that the plaintiff does suffer from what he calls "psychological factors" which predated and coexist with the laceration and may have led to special apprehension regarding the consequences of the injury (report 5 September 2011). However, these are "minor issues as a consequence of him not being able to pursue sport" (report 20 September 2011) in circumstances where there are "many other severe stresses in his life such as not having a father, problems with his mother and brother and having pre-existing reading difficulties". Dr Akkerman describes his symptoms as "minimal", noting the absence of a mental state examination by Ms Cantali. He repeats in his report of 18 January 2012 that the plaintiff has at best "minor issues regarding adolescence turmoil" (page 4). 67Another problem with Ms Cantali's reports is that she has accepted uncritically, for the purpose of her written report, the factual basis upon which the plaintiff's claim is brought, but in her evidence she conceded that a number of the factual statements in her report were inaccurate. In particular, she agreed that the plaintiff had not been playing sport for the period December 2006 to October 2007 and had, in particular, not been playing football with his team during this period. The importance of factually accurate background information and history 68In Makita, the importance of factually accurate material was strongly emphasised. This is of particular relevance to claims for psychiatric injuries, where the nature and extent of injury is not something as readily visible or understandable as a physical condition which is demonstrable by objective investigations such as x-rays. 69In Woods v DPP (WA) [2008] WASCA 188, the court carefully analysed the correct approach to take to expert psychiatric evidence, and particularly noted the importance of accurate factual material, citing the following passage from R v Kneipp [1975] Qd R 1: "In general, the facts on which an expert's opinion is based not only may be proved, but must be proved by admissible evidence: see Cross on Evidence (Australian Edition) at p 461, and the cases there cited. In the case of a medical witness, the facts on which he relies may include, among others, his own observations, the results of tests or experiments, and what the patient has told him of the patient's history and symptoms. Of course, if what the patient has told him is not confirmed by evidence from the plaintiff or other sources, this may weaken or destroy the effect of his evidence: Ramsay v Watson (1961) 108 CLR 642. It seems to me that the same principles are applicable to the evidence of a psychiatrist as to the evidence of any other medical witness, subject to the observation that what the patient of a psychiatrist says or has said, whether to him or in his presence or not, may be relevant to him, and admissible in evidence, quite irrespective of proof of any facts stated in the statement." 70The factual problems may be summarised as follows: (a)Ms Cantali's inconsistent account as to the nature and severity of the plaintiff's physical injury and his reasons for not playing football in 2007; (b)The presence of other stresses in the plaintiff's life, such as the behavioural problems of his older brother (including his expulsion from school), the circumstances in which both the plaintiff and his older brother had been victims of a sexual assault, the role of the family history of depression, the impact of other physical injuries (including his two other foot injuries in 2007) and a twice broken wrist in 2009 and potential other diagnoses such as ADHD (Exhibit 2, p 51). (a) The nature and extent of the plaintiff's injury 71Although in her reports Ms Cantali described the plaintiff as having suffered an injury which was physically serious, she agreed that the injury was, medically speaking "insignificant". 72Ms Cantali said: "No matter how good or how bad he was he felt important in that field and he was able to interact with other kids in a positive way, so once that was over he had nothing else and even though you said that he wasn't playing in 2007, his mother was very busy and wasn't able to cope, to take him, but you know what he was hanging out for that, and once - you know he was hanging out for that so when that happened and he wasn't able to go, no matter how insignificant that problem was with his foot, that was for him was a - he felt it really badly." (T 102) 73Ms Cantali was certain the reason the plaintiff did not play football in 2007 was because his mother did not have the time to take him, and not because of schoolwork problems (T 104). 74Whatever the reason, this was a significant departure from her statements in the reports, set out above, referring to the plaintiff having a serious physical problem which prevented him from playing sport. 75Further, Ms Cantali never elaborated upon why it was that the toe incident, as opposed to the plaintiff's two other foot injuries in 2007, both of which required treatment at the emergency unit and for the plaintiff to go back to school on crutches, did not play any role in any anxieties he had about playing football. 76In addition, the plaintiff suffered other stresses, ranging from family problems to being the victim to a sexual assault. (b) Other causes of stress 77As set out above, Ms Cantali was cross-examined about other potential triggers for any psychological or psychiatric problems, namely: (a)the plaintiff's older brother's behavioural problems, which included expulsion from school, and the circumstances in which this boy had been the victim of a sexual assault by a neighbour and was shortly to give evidence in criminal proceedings; (b)The circumstances in which the plaintiff had complained of a sexual assault by a neighbour; (c)A family history of depression problems suffered by the plaintiff's mother, aunt and grandmother; (d)A history prior to the accident of school bullying of the plaintiff, including one incident when he had been sent home from school and another where a brick had been thrown at him, where the plaintiff was a victim because he was younger and smaller than many other boys in the class. 78I shall first note the evidence concerning the plaintiff's older brother. According to X School Mental Health Unit notes prepared by Dr Pistilli (apparently under the oversight of Professor Hazell), the plaintiff idolised his older brother, whose truanting from school led to his expulsion and who was described as displaying delinquency at a level higher than the plaintiff. 79As noted above, Ms Cantali did not agree with this finding (T 131), and did not agree that the plaintiff's brother had in fact been expelled from school, or that the family environment contributed. She considered the family to be a stable one. 80The material considered by X School (see Exhibit 2, pp 37-57), with its emphasis on family problems, the impact of sex assault on the plaintiff and his brother, and family history, is a careful and objective analysis of problems of a significant kind. There is no reference to the pool injury; the major injury or illness referred to in these notes is a broken wrist in 2009 (p 39). The only reference in these doctors' notes to football is a note that the plaintiff enjoys playing football in his front yard (Exhibit 2, p 57). By contrast, Ms Cantali did not appear to have kept notes of any substance to record what was said during her meetings with the plaintiff. Conclusions concerning disability and causation issues 81At T 107 Ms Cantali gave the following opinions: "Q. Would it be fair to say if we can just pause, bearing in mind a number of questions that I've asked you. Would it be fair to say that the pool incident may have been one of a number of potential triggering factors that set off what you believe to be [the plaintiff]'s current mental health problems? A. Yes I do yes. Q. Is it like the straw that broke the camel's back? A. Yes it is. Q. And sometimes that straw only has to be pretty small in order to do that because of a whole lot of other unrelated issues - unrelated to the straw incident I mean? A. And you know I think what it is it's the time it happened and it was that time in his life and that transition, and with adolescence transition points, there are points in kid's lives that are very very, when they're more susceptible to situations and other times." 82In summary, the defendant has demonstrated, through cross-examination of Ms Cantali and the tender of X School records, that the plaintiff has been subjected to significant stresses in both his home and school life, and that even on the plaintiff's case at its highest, the swimming pool incident was, given Ms Cantali's concessions, only one of these. 83Football was an outlet for the plaintiff which he lost when his mother could no longer take him to play in the regular weekend matches for the whole of 2007. During 2007 and 2008 he suffered three foot injuries which required him to go to the emergency section of the hospital and to have time off school. The role played by the second of these injuries, namely the injury the subject of these proceedings would be, on the evidence of Dr Akkerman and the X School doctors' notes, trifling. It was the second and least serious of the physical injuries to his feet in 2007 - 8. He made no further complaint to his general practitioner until 7 March 2008, six months after the incident, and his complaint, as noted by Dr Marinucci, was that it was "sore when plays sport", not that it prevented him from playing any sport. He made a further complaint on 26 July, at which time he was referred to Dr Hollinshead, who found no problems. 84On 4 November 2008, a month later, he jumped off a first storey building, and was referred to an orthopaedic surgeon for unrelated injuries. He did not mention his right foot injury again until 6 September 2010, when he told Dr Marinucci he had problems because of the sexual assault, the injury to his foot, and depression. By this time, he was already in X School and was about to see Dr Akkerman for a medico-legal assessment. 85Taking all of the above into account, I am satisfied that the "pool incident" (T 107) was one of a series of injuries the plaintiff suffered at a time when issues such as family problems (particularly relating to his older brother) and a sexual assault were of far greater significance than any of these accidents, either individually or collectively. 86The first issue is whether the plaintiff has a psychiatric condition at all. The plaintiff has not, on the evidence of Ms Cantali, made out that he suffers from a psychiatric condition. The report from Professor Hazell amounts to a statement that the plaintiff suffers from a condition, without explaining why, and I am reluctant to endeavour to analyse Dr Pistilli's notes to determine whether that diagnosis should be accepted. 87On the evidence before me, I prefer Dr Akkerman's carefully reasoned opinion that the plaintiff is suffering from adolescent turmoil which falls short of amounting to a diagnosable condition, and that his adolescent turmoil is in fact within normal limits. I also accept his conclusion that there is no pre-existing condition rendering the plaintiff vulnerable (Exhibit 1, report 20 September 2011, p 5). 88However, if I have erred in so finding, and Professor Hazell's diagnosis should be accepted, then the plaintiff has still failed to establish any causal link between has resulted from the circumstances of his injury at Ashfield Swimming Pool. In the event that the plaintiff does suffer from the conditions diagnosed by Professor Hazell and Dr Pistilli, he suffers from them for the reasons outlined by those doctors in their careful and extensive notes, which do not include a reference to the swimming pool incident. While it may be that the plaintiff's loss of confidence due to failure to participate in school sport played a part in his problems, the reason he did not participate in school sport for the whole of 2007 was because he was not playing football at all during that year. By the time he injured his foot in October, the school year was almost over. 89The plaintiff has failed to establish causation. In addition, however, the defendant relies upon s 32 Civil Liability Act 2002 (NSW) to establish that it does not owe the plaintiff a duty not to cause mental harm, and I now set out my findings on this issue. Section 32 Civil Liability Act 2002 (NSW) 90The defendant submits that it does not owe a duty to the plaintiff not to cause mental harm, relying upon the provisions of s 32 Civil Liability Act 2002 (NSW). 91Section 32 Civil Liability Act 2002 (NSW) provides: "32 Mental harm-duty of care (1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff." 92I also note the definition of "consequential harm" in s 27 as follows: ""consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind." 93"Mental harm" and "pure mental harm" are also defined in s 27. 94The defendant submits that the plaintiff is not a person of "normal fortitude" and his psychological injury has arisen by reason of pre-existing vulnerabilities which affected not only his perception of the circumstances surrounding his accident but were in fact the cause of any mental harm that he had suffered. 95The precursor to s 32, in relation to "normal fortitude", was the High Court's decision in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 where Gleeson CJ described "normal fortitude" at [16] as follows: "[16] Furthermore, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established what Brennan J described in Jaensch v Coffey as "an objective criterion of duty". The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to "a normal standard of susceptibility" as one of a number of "general guidelines" in judging reasonable foreseeability. This does not mean that judges suffer from the delusion that there is a "normal" person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though "normal fortitude" cannot be regarded as a separate and definitive test of liability." 96This in turn has its origins in the reference to a "reasonably normal condition" in Bourhill v Young [1942] 2 All ER 393 at 406 per Wright LJ. In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Windeyer J noted at 405: "I venture to question its validity for reasons I shall state. But first it is enough to say that, assuming it be correct to the full extent stated, it does not affect the present case. The plaintiff here was not before the accident obviously prone to nervous shock or to any psychological derangement. He had worked satisfactorily for the appellant for fifteen years. The trial judge, directing his attention to this aspect, found as a fact that there was "nothing in his personal or family or medical or occupational history" before the accident which would disqualify him as a plaintiff. I must add that I am not to be taken as assenting to the proposition that nervous shock caused to a man who is prone to such shock is not compensable when a similar occurrence harming a "normal" man would be. That, I think, should remain for us an open question. It does not arise in this case. I therefore say only a few words to indicate my misgivings. To begin with, the line of distinction postulated is not in any particular case easily drawn. The idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact. Waller J referred to this in Chadwick v British Railways Board (1967) 1 WLR 912, at p 922 (The case is also reported (sub nom. Chadwick v British Transport Commission) in All England Reports (1967) 2 All ER 945, at p 952; but the relevant sentence is there not the same: one word seems to be mistaken.) His Lordship said: "The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities." Next, the supposed rule does not, at first sight, stand well with the so-called "egg-shell skull" rule in relation to physical harm. That, Lord Parker CJ has emphatically said, is still lively doctrine: Smith v Leech Brain & Co Ltd (1962) 2 QB 405, at p 414. I have no doubt that we should agree and that it is still for us the law that a tortfeasor takes his victim as he finds him. The proposition that a man susceptible to nervous shock is not entitled to damages is said to be reconcilable with that, because it is said that there is no duty of care for unknown abnormal persons who suffer harm because of their abnormality: only if a defendant knew or ought to have known of the existence of the plaintiff's infirmity had he a duty to avoid harm to him which a normal man would not suffer; only then would he be a tortfeasor and the man with an egg-shell mentality the victim of a tort. I appreciate that. Nevertheless I do not find the proposition easy. A mother who suffers a shock because she sees her child run over by a negligently-driven motor car is entitled to damages, apparently because mothers are likely to be near their children and prone to suffer shock if they see them hurt: yet a stranger who suffers shock because he sees the same happening is not entitled to damages unless he was a person not prone to shock, or it is suggested, with what logic is not apparent, if he was present as a rescuer. However, I need say no more about the position of persons prone to suffer shock, for the present plaintiff was not such a person. I wish only to guard myself for the future by saying that, as at present advised, I am not convinced that a defendant in cases of this sort can escape liability simply by shewing that, unknown to him, a person who suffered harm was easily harmed." 97The Civil Liability Act 2002 (NSW) does not define the concept of "normal fortitude" but I note the helpful discussion of this concept by Hume J in Hollier v Sutcliffe [2010] NSWSC 279 at [226]-[231] as follows: "[226] In Tame, all of the judges agreed, although variously expressed, that the plaintiff's reaction to an allegation that she had consumed alcohol prior to a motor vehicle collision was not that expected of a person of normal fortitude. It was a reaction, which Gummow and Kirby JJ described (at [233]) as "extreme or idiosyncratic". [227] By contrast, in Annetts, the reaction of parents, who had entrusted the care of their son to the defendants, to the news of his death was that expected of a person of normal fortitude. [228] In Tomisevic v Menzies Wagga Southern Pty Ltd, [2005] NSWCA 178, Beazley JA (Mason P and Pearlman AJA agreeing) held that it was not reasonably foreseeable that a person of normal fortitude would suffer a recognisable psychiatric illness as a result of being splashed in the face by water contaminated by faeces. [229] In Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower, [2006] NSWSC 512, the plaintiffs claimed damages for psychiatric harm arising out of the death of their horse caused by purchasing contaminated feed from the defendant. Hoeben J determined against the plaintiffs on this issue (see [257]) by applying Tame and Annetts in so far as it was not reasonably foreseeable that a horse owner of normal fortitude would develop a psychiatric injury in the circumstances of this case. [230] In CSR Ltd and Another v Thompson [2003] NSWCA 329 at [43] ; 59 NSWLR 77, Ipp JA (Handley and Sheller JJ agreeing) said that consequential mental symptoms such as emotional distress that do not amount to recognisable psychiatric harm are not compensable. In contrast, in the present case the defendant concedes the plaintiff suffers from a recognisable psychiatric illness. [231] In Bourhill v Young, supra, the plaintiff, a pregnant women, suffered nervous shock and subsequently gave birth to a still born child, in consequence of hearing a collision involving a motorcyclist. In discussing the issue of normal fortitude, Lord Porter said at 117: The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may time to time be expected to occur in them, including the noise of a collision and the sight of injury to others." 98More recently the High Court in Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of NSW (2010) 241 CLR 60 at [23]-[29] has explained: "[23] The determination of whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be made with regard to "the circumstances of the case". Section 32(2) identifies four kinds of circumstance to which regard should be had: whether the mental harm was caused by sudden shock, whether there was "witness[ing], at the scene," of certain types of event, what was the relationship between plaintiff and victim, and whether there was a relationship between plaintiff and defendant. But s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances. [24] Section 32, taking the form it does, must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by this court in Tame v New South Wales. Judgment in Tame was delivered on 5 September 2002; the provisions of Pt 3 of the Civil Liability Act were inserted in December 2002 by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). [25] Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the court in Tame rejected the propositions that concepts of "reasonable or ordinary fortitude", "shocking event" or "directness of connection" were additional pre-conditions to liability. [26] In part, s 32 of the Civil Liability Act reflects the state of the common law identified in Tame. Consistent with what was decided in Tame, s 32 assumes that foreseeability is the central determinant of duty of care. Consistent with Tame, "shocking event", and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care. But contrary to what was decided in Tame, s 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness. [27] For present purposes, there are three important features of s 32. First, "sudden shock" (the expression used in s 32(2)(a)) is no more than one of several circumstances that bear upon whether a defendant "ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken". The occurrence of "sudden shock" is neither a necessary nor a sufficient condition for a finding that a defendant owed a duty to take reasonable care not to cause a plaintiff pure mental harm. [28] Secondly, witnessing, at the scene, a person being killed, injured or put in peril is also but one of the circumstances that bear upon the central question of foreseeability. Witnessing, of the kind described, is neither a necessary nor a sufficient condition for finding a duty of care. [29] Thirdly, the focus of s 32 is "mental harm" and "a recognised psychiatric illness", not mental or nervous shock. Section 32 does not use the expression "mental or nervous shock". Yet, as noted earlier, the phrase "mental or nervous shock" appears in s 29 of the Civil Liability Act, and in s 30(1), the provision which determines whether s 30 is engaged. Section 30 applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) "arising wholly or partly from mental or nervous shock" in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant." 99I have had the benefit of additional submissions from both the plaintiff (5 March 2012) and defendant (1 March 2012) concerning other recent decisions which have considered this issue, none of which add anything to the discussion set out in the extracts above. 100The parties agreed that questions of what amounts to "normal fortitude" should be approached in the manner described by the High Court of Australia in Tame v New South Wales, supra; Hollier v Sutcliffe, supra, at 16. 101Essentially what the plaintiff submits is that the plaintiff's reaction was neither extreme nor idiosyncratic (written submissions, paragraph 6) in that he was a 11 year old boy whose inability to play sport and consequential psychological response was readily foreseeable by the defendant who admits that the standard of repair at its premises might give rise to a foreseeable risk of injury. An important factor should be the age of the plaintiff. In Hollier v Sutcliffe, no physical injury, in the sense of an accident causing physical injury, occurred in the ordinary sense of the word. 102The defendant submits that the plaintiff was not a person of normal fortitude but a person pre-disposed by the many factors referred to in the X School reports which formed part of Exhibit 2 (especially pp 51-57) and that the response of the plaintiff was similar to that of the plaintiff in Tame v New South Wales, namely "extreme or idiosyncratic" (at 233 per Gummow and Kirby JJ). It is submitted that it was not reasonably foreseeable that a person of normal fortitude might, in the circumstances of a physical injury of the kind suffered here, suffer a recognised psychiatric illness. 103In Hollier v Sutcliffe Hume J noted at [232] that whilst it would be expected that if reasonable care was not taken some physical harm might occur, the question of whether a recognised psychiatric illness might be suffered could not have been foreseen. 104Cases of this kind turn on their facts. It is a factor of very great weight that the plaintiff is a child, and he suffered his injury unexpectedly and in a place where the defendant must have expected young children would congregate. The potential dangers of swimming pools and the consequence of injury in circumstances where a child is in water are significant. However, children of normal fortitude suffer injuries of this kind in the course of recreational activities. There is no expert evidence before me to the effect that children are more vulnerable to psychiatric injury arising from accidents suffered during recreational pursuits. 105None of the elements in s 32 are able to be made out. As an injury in terms of the injuries potentially capable of being suffered, namely an injury caused by a cut toe on a broken tile in a swimming pool, is at the bottom of the range. The plaintiff's response was out of all proportion to what might reasonably have been anticipated (Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178 at [13] and [39]). The plaintiff's response was not that of a person of normal fortitude. 106Accordingly, I am satisfied that the defendant does not owe a duty of care to the plaintiff by reason of the provisions of s 32 Civil Liability Act 2002 (NSW). 107This brings me to a consideration of the question of damages. As the defendant has succeeded on issues relevant to causation and s 32 Civil Liability Act 2002 (NSW), I have assessed the damages as amounting solely to the $305.55 out-of-pockets in relation to the plaintiff's toe injury. I include some brief comments concerning the plaintiff's claim for damages as alternative findings in the event that these are of assistance if I have erred in my findings concerning causation and s 32 Civil Liability Act 2002 (NSW). The plaintiff's claim for damages 108The plaintiff claims damages as follows: Head of Damage Amount Non-economic loss: $73,000.00 (28%) Out of pocket expenses: (i) Dr G Lyon $110.00 $10,673.60 (ii) Medicare $2,407.35(iii) Ms R Cantali $8,156.25 Future out of pocket expenses: $8,840.00 Sessions with Ms Cantali every fortnight x 2 years: $170.00 x 52 = Economic loss: $15,000.00 The condition suffered by the plaintiff has reduced the effectiveness of a good part of his recent schooling and may postpone gainful employment. The plaintiff seeks "cushion" in connection with this head of damage. Total: $107,513.60 Non-economic loss 109I consider that the plaintiff cannot establish non-economic loss over the threshold. He is the first member of his family to proceed as far as year 11 in high school and according to his school reports (Exhibit 2) he is doing well. Beyond requiring psychological counselling for two years, he suffers from no other disabilities, on the plaintiff's case at its highest. Accordingly, I would not award any damages for non-economic loss. Past and future out of pocket expenses 110Past out of pockets are agreed in the sum of $305.55 for the following: Category Items Amount Dr Geoffrey Lyons Dr G Lyons - 1/12/08 $110.00 Medicare Charge dated 1/4/11 Dr J Hollinshead - 13/8/08 $65.70 Dr N Marinucci - 30/10/07 $37.40 Dr N Marinucci - 6/11/07 $38.20 Dr N Marinucci - 3/5/08 $5.40 Dr N Marinucci -26/7/08 $48.85 Total $305.55 111The following additional amounts of $10,302.55 are claimed by the plaintiff in relation to the psychological injury: Category Items Amount Dr Geoffrey Lyons Dr G Lyons - 1/12/08 $110.00 Medicare Charge dated 1/4/11 Dr J Hollinshead - 13/8/08 $65.70 Dr N Marinucci - 30/10/07 $37.40 Dr N Marinucci - 6/11/07 $38.20 Dr N Marinucci - 26/7/08 $48.85 Dr N Marinucci - 5/3/09 $162.40 Rose Cantali - 3/6/09 $78.40 Rose Cantali - 27/7/09 $78.40 Rose Cantali - 10/8/09 $78.40 Rose Cantali - 17/11/09 $80.20 Rose Cantali - 7/6/10 $80.20 Rose Cantali - 9/9/10 $80.20 Rose Cantali - 18/9/10 $80.20 Rose Cantali - 14/10/10 $80.20 Rose Cantali - 13/1/11 $81.60 Rose Cantali - 3/2/11 $81.60 Rose Cantali - 24/2/11 $81.60 Rose Cantali - 19/3/11 $81.60 Rose Cantali - 16/5/11 $119.80 Rose Cantali - 2/6/11 $119.80 Rose Cantali - 30/6/11 $119.80 Rose Cantali - 3/9/11 $119.80 Rose Cantali - 19/9/11 $119.80 Rose Cantali - 3/11/11 $122.15 Rose Cantali $8,156.25 Total $10,302.55 112The plaintiff also claims for items unrelated either to the toe or to the alleged psychological injury: Category Items Amount Medicare Charge dated 1/4/11 Dr N Marinucci - 3/5/08 $5.40 Dr N Marinucci - 7/5/08 $32.80 Dr N Marinucci - 5/11/08 $39.10 Dr N Marinucci - 19/11/08 $50.85 Dr Ho - Five Dock Medical Imaging - 5/11/08 $55.90 Dr Schmaman - 19/11/08 $187.00 Total $371.05 113If the plaintiff has suffered a compensable injury as a result of his accident at the swimming pool, all these expenses should be awarded. The total sum awarded would be these disbursements only, which would be under the threshold for costs to be awarded without an order to that effect by the court. Economic loss 114The cushion proposed for the plaintiff's economic loss is very modest. The plaintiff has successfully completed his school certificate and is in Year 11. He has his own resume and has completed work experience projects. He has become interested in a future career and TAFE studies. All the evidence points to the plaintiff making a successful transition into paid employment, under the wise supervision and assistance of X School. He should not be entitled to any claim for future economic loss. Payment of the judgment sum 115The plaintiff is a minor, but given the sum to be awarded is for reimbursement of medical expenses incurred by the tutor, there is no need for orders for the investment of the judgment sum. Costs 116The parties have asked me to reserve the issue of costs. Orders (1)Judgment for the plaintiff for $305.55. (2)Costs reserved. (3)Liberty to apply in relation to costs. (4)Exhibits retained for 28 days. ****** 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: 03 April 2012