Mattock v State of New South Wales (New South Wales Department of Education) (No 2)

1. [1]

   HER HONOUR: The plaintiff seeks damages for personal injury arising out of a head clash he sustained while playing touch football on 29 June 2012 at Eden Marine High School (the school).

2. [2]

   The plaintiff is Daniel Francis Mattock. The defendant is State of New South Wales (New South Wales Department of Education).

Evidence

1. [3]

   The plaintiff relied upon his statement dated 16 April 2019. He gave evidence and was cross examined.

2. [4]

   Zachariah Samuel Slater (Ex C), William Andrew Swires (Ex D), Chris Steiner (Ex E), the plaintiff’s mother Julianne Mattock (Ex F), Douglas Charles Blair (Ex A(1) Tab 6), Pamela Cocks (Ex A(1) Tab 5), Chris Steiner and Jordan Parkes (Ex G) relied upon their statements. They all gave evidence and were cross examined.

3. [5]

   The statements by lay witnesses Bradley Cole (Ex A(1), Tab 7), Callan Sinclair (Ex B) and Jake Nikitaras ( Ex A(1), Tab 8) were admitted into evidence. They were not required for cross examination.

4. [6]

   Mr Peter Meaney, on behalf of the defendant, provided an expert’s report on liability dated 2 February 2021 (Ex A(1), Tab 15). At the hearing I disallowed the plaintiff’s expert’s report of Ken Armanasco being admitted into evidence: see Mattock v State of New South Wales (New South Wales Department of Education) (No 1) [2021] NSWSC 477.

5. [7]

   Neurologists, Professor Bruce Brew on behalf of the plaintiff and Dr Ian Sutton on behalf of the defendant, prepared a joint report (Ex A(1), Tab 18). They gave concurrent evidence.

6. [8]

   Occupational therapists, Kelly Walcot on behalf of the plaintiff and Susan Borthwick on behalf of the defendant prepared a joint report dated 5 February 2021 (Ex A(1), Tab 19). They were not required for cross examination.

7. [9]

   Neuropsychologists, Associate Professor Jennifer Bacthelor on behalf of the plaintiff and Professor Richard Mattick on behalf of the defendant, provided a joint report dated 2 February 2021 (Ex A(1), Tab 21). They were not required for cross examination.

8. [10]

   The plaintiff relied upon the reports of Dr Patricia Jungfer, psychiatrist, dated 28 November 2018, 1 August 2019 and 16 September 2020 (Ex A(2), Tab 27). She was not required for cross examination.

9. [11]

   The plaintiff relied upon an economic loss report of Chris Katehos, Forensic Accountant of Furzer Crestani dated 21 December 2019 (Ex A(3), Tab 42). However, at the end of the trial the plaintiff’s economic loss was calculated on a different basis.

10. [12]

    The plaintiff relied upon his evidentiary statement dated 16 April 2019 (Ex A(1), Tab 4).

11. [13]

    At the time of the accident he was a year 9 student aged 15 years at Eden Marine High school.

12. [14]

    The plaintiff says that that he always considered himself to be a normal teenager. He enjoyed playing sports and socialising with his friends. He especially liked playing rugby league.

13. [15]

    He represented the school in athletics in the 2013 regional competition, clocking 12.09 seconds for the 100 metres. He also represented the school in high jump, long jump and javelin at Regional and State levels.

14. [16]

    He says that he enjoyed school and learning. In year 7, he says that he was presented with academic awards for achieving first place in language, and second place in maths and science.

15. [17]

    The school documentation, which includes Year 7 Naplan records, indicates a different picture. The plaintiff performed around the school and national average in reading and numeracy. He performed below average in language conventions and writing and his spelling was significantly lower than the national and school average (T56.38-47).

16. [18]

    In cross examination, the plaintiff admitted that his school record included some disciplinary issues. Some examples of the disciplinary issues he was cross examined upon are as follows.

17. [19]

    On 20 November 2010, the plaintiff was suspended for inappropriately aggressive behaviour and verbally harassing a student and then punching the student (T56.23-28).

18. [20]

    In August 2011, a demerit card was issued for failure to follow teaching instructions followed by defiance and insolence. It was reported that the plaintiff made sarcastic a comment to the teacher “you are a fucking good teacher” (T54.1-11). Further letters of unsatisfactory progress and concern were sent to the plaintiff’s mother in October 2011 (T54.28-49).

19. [21]

    On 22 June 2012, a further demerit card was issued. It records as follows: “Daniel exploded: “are you fucking kidding?” He also called me “an idiot”. In re-examination, the plaintiff gave the following evidence regarding this outburst at T66.1-17:

20. [22]

    While I accept the plaintiff’s explanation the outburst was not wise, these examples demonstrate that the plaintiff was displaying bad behaviour at school before the collision.

21. [23]

    The plaintiff attended an automotive studies course at Bega TAFE during his final years of school, but his schoolwork was poor. On 27 August 2014, his school records indicate that the plaintiff had not attended school since 26 May 2014.

22. [24]

    After school hours, the plaintiff worked part time at a fish and chips shop for about 2½ years. During the holiday season, he worked fulltime 7 days per week. During this time, the plaintiff did not earn more than the minimum amount needed for tax purposes.

23. [25]

    Prior to the accident, the plaintiff was living in the family home with his mother. After school hours he would help out around the home. He says that he would bring in the groceries, help with the cooking and clean his room. He would mow the lawn which took about 4 hours per week and cut down trees and split firewood every day after school for about 2 to 2½ hours. He helped with home maintenance and cleaned the cars about one or twice per month for 2-3 hours per car.

24. [26]

    Prior to the accident, the plaintiff says that he received the school’s Sportsman of the Year Award.

25. [27]

    He says that he enjoyed mechanical pursuits when he was younger, including automotive pursuits. He did metal work at school because he was good with his hands. He considered that it would be useful to be able to do physical work in the mechanical setting.

26. [28]

    It was the plaintiff’s intention to complete the Higher School Certificate, albeit he left school in year 11. Once he graduated from high school, he intended to undertake a Bachelor of Mechanical Engineering at the University of Wollongong. After obtaining this degree, he says that he intended to work as a mechanical engineer, including possibly working for the mines. He knew that there was a lot of money to be made with the fly-in/fly-out type of work that was available, and he had members of his family who did that sort of work in the mines in Queensland.

27. [29]

    If the plaintiff did not obtain the requisite ATAR grade to qualify for entry into university, his alternate plan was to undertake bridging courses at night in order to qualify for university.

28. [30]

    The plaintiff had played rugby league from a young age, playing his first game when he was 9 years old (T.30.20-25).

29. [31]

    He represented his school in Group 16 in the rugby league competition and played on the wing, centre and fullback.

30. [32]

    When he was 15 he played in the Under 18s competition. At 16 he played reserve grade for the Eden Tigers.

31. [33]

    At the time of the accident, the plaintiff was halfway through a rugby league season, playing under 18s for Eden Tigers as a winger or fullback (T30.25-35). Zachariah (“Zac”) was also playing in this team (T80.1-16). After the collision, the plaintiff continued playing rugby league for Eden for the rest of the season. He played reserve grade for Eden the following season (T33.40-34.10). The plaintiff gave the following evidence in relation to his experience with balls kicked high in the air (T30.33-50; T31.48):

The accident

1. [34]

   Both the plaintiff and the defendant, in written submissions, highlighted the evidence that they say supports their case. I have included this evidence in order to make my factual findings.

2. [35]

   On the 29 June 2012 at about 2.40 pm during (in what I will neutrally describe at this stage, as “the physical activity class”), a head knock (sometimes referred to in the decision as a collision) occurred between the plaintiff and Callan Sinclair (“Callan”) The class was under the supervision of Mr Blair, an experienced physical education teacher who was also acting as the referee. It was the last period of the day.

3. [36]

   The recollections of the witnesses vary. It is in dispute whether the class was a Physical Education (“PE”) or Physical Activities and Sports Studies (“PASS”) class.

4. [37]

   It is the plaintiff's evidence that the accident occurred during a mixed gender PASS class containing the top graded students (T29.5-30.5). During examination in chief, Zac gave evidence that there were boys and girls involved in this game (T79.10). Callan’s evidence was that he was in the same Year 9 PASS class as the plaintiff in 2012 which was taught by Mr Blair.

5. [38]

   During cross examination, the plaintiff described the game as touch football with added elements from rugby league. This included using six phases of play and the use of kicking on the fifth phase (T28.20-28.45). He later agreed with the definition of the game as 'rugby league without tackling' (T30.15). In cross examination, Zac stated that the game played was a hybrid game of touch football and rugby league (T82.20-82.35).

6. [39]

   It is Mr Blair's evidence that on the afternoon of 29 June 2012 he ran a 'Hybrid/Creative Games' PE class for a group of Year 9 students. Hybrid/Creative Games is a unit in the PE program which involves mixing the skills and rules of different games such as AFL, soccer, NRL, touch football, rugby union or league into a new game (the hybrid game). There were approximately 28-30 male students in the Year 9 class. The plaintiff was in this class.

7. [40]

   When asked during cross examination, whether there were any girls in this class, Mr Blair stated that he was reasonably positive that there were no girls present. This was because PE classes, unlike PASS classes, only contain one gender. To Mr Blair's recollection, this was the highest graded boys Year 9 PE class (T130.5).

8. [41]

   It is common ground that Mr Blair’s normal practice was to start the game by having a high ball kick-off.

PE or PASS?

1. [42]

   As I said earlier, it is in dispute as to whether the accident occurred during a PE or PASS class. However, both parties accept that regardless of which class this occurred in, it was the top graded students for this class.

2. [43]

   Senior counsel for the plaintiff submitted that it is the plaintiff’s version of events which should be accepted. This is based upon the following reasons: Firstly, of the plaintiff’s own recollection that the accident occurred during a PASS class which is corroborated by Callan's evidence that he was in the same PASS class as the plaintiff; secondly, Zac's recollection that it was a mixed class of boys and girls, together with the evidence from Mr Blair who stated that PE classes were gender specific, suggests that it was a PASS class; thirdly, Mr Blair's evidence should not be accepted in circumstances where his memory of the incident was not outstanding (T132.31-47) and the inconsistencies with Mr Blair’s account and the other accounts given (T130.1-7); finally, the plaintiff submitted that the existence of touch football as a unit of study in the PASS syllabus suggests that this accident occurred during a PASS class (Ex A(4) Tab 64). I have taken these submissions into account when making my findings below.

3. [44]

   I have included the defendant’s submissions earlier as to what is says are the factual finds this court should make.

4. [45]

   Despite the plaintiff's criticisms of Mr Blair's memory of the incident, it is my view that Mr Blair as an experienced sports teacher would have been more aware and attuned to the type of class he was teaching. He would have been in the best position to recall whether it was PE class or a PASS class. I accept and prefer Mr Blair’s evidence over those who say it was a PASS class. I make a finding that it was a PE class comprised of the top graded male students. The general description of the game played was that it was a hybrid of touch football and rugby league and AFL. I accept the plaintiff’s description of the game as ‘rugby league without tackling’ (except for the kick-off). The game was initiated by a high ball kick which was contested by the opposing players. A defensive player would ‘tap’ an offensive player, as in touch football, constituting a tackle. There would be 6 phases of play with the option to kick on the final phase. Even if I am wrong and it was not a PE class and it was a PASS class, the game that was played was the “hybrid game”.

5. [46]

   However, contrary to Mr Blair’s recollection that the head knock occurred in the latter part of the game, I accept and prefer the evidence of Callan, Zac and the plaintiff that the head knock occurred immediately after Zac kicked the high ball to start the game.

6. [47]

   On the day of the accident it is common ground that Zac started the game with a high ball kick-off. The plaintiff went running after the ball. Both Callan and the plaintiff jumped up to intercept the ball to gain possession for their respective team. Both their heads collided when they were running at significant speed. The plaintiff felt Callan’s teeth going into his left temple.

7. [48]

   What happened next is also in dispute. The plaintiff deposed that he was knocked unconscious and when he awoke several minutes later, Mr Blair was present. His evidence is that there was blood going down his cheek, he was concussed and disorientated. I accept there was blood going down his cheek.

8. [49]

   Callan in his evidentiary statement described the incident a “nasty collision” and said that he was also knocked out for a short period of time. He recalls that the plaintiff’s injuries were worse than his, but he cannot remember how long they were on the ground.

9. [50]

   During cross examination, Mr Blair gave evidence that he was 15-20 metres away from the collision when it occurred. There was only a short period of time that elapsed between when the head clash occurred and when he attended the vicinity of the accident (T134.45–T135.10).

10. [51]

    During cross examination, the plaintiff described his memory of events following the collision as partial or incomplete (T34.40–T35.15). He did not recall Mr Blair conducting any assessments of him following the collision (T36.5-40).

11. [52]

    Mr Blair’s evidence is that he assessed the plaintiff to check for concussion and a possible head injury. To assess the severity of the plaintiff’s head injury, Mr Blair used a process called “TOTAPS” (talk, observe, touch, active movement, passive movement and stand) (T137.45). He was qualified in first aid. He stated that, through this qualification, he had some idea of what was happening (T131.15). It is Mr Blair’s evidence that the plaintiff was standing up when he conducted these tests. He asked the plaintiff to close his eyes (T135.35). As part of this TOTPAS process, Mr Blair says that he asked the plaintiff a number of questions to determine how coherent he was, whether he was aware of where he was and what had happened. These questions may have included what time of day it was and what field they were playing on (T130.40). The plaintiff answered these questions and was oriented as to where he was (T130.45).

12. [53]

    As part of this assessment process Mr Blair performed further tests which he says can be indicative of serious head injury (T130.20). One of these tests involved asking the plaintiff to close both eyes. He then tapped above one of the plaintiff’s eyes for him to open that eye. When the plaintiff opened that eye, he could then check to see if his pupil was fixated or whether it adjusted according to the amount of light that went into his eye. Mr Blair also recalls that he may have checked the plaintiff for tracking. This involves moving his finger across the plaintiff's eye and observing if the plaintiff’s pupil follows his finger (T130.25-30).

13. [54]

    After performing these TOTAPS assessments, Mr Blair was of the opinion that the plaintiff was dazed but not seriously injured (T132.20). He also decided that the plaintiff should not continue playing the game and should be observed in another environment, namely the first aid office at the school (T137.45). He did not recall any blood on the plaintiff's temple following the collision (T137.25).

14. [55]

    Following the collision, Mr Blair requested that Zac and Bradley Cole (Brad) assist the plaintiff to the first aid office which was “a couple of football pitches away”. Brad assisted the plaintiff to the first aid office and remained there for a short time before being sent back to class. It seems that Brad carried the plaintiff’s bag to the first aid office. It is the plaintiff’s evidence that he had to lean on Zac because he could not balance and could barely stand on his feet. Zac’s evidence is that he was not at school that day. So it may be that Zac’s memory is incorrect or more likely it was another pupil who assisted the plaintiff to the first aid office. However, nothing turns on this factual inconsistency.

15. [56]

    When the plaintiff arrived at the first aid office, he says that the first aid officer, Ms Cocks told him that he could just wait and catch the bus home as there was only 20 minutes left until the end of the day. It is common ground that Ms Cocks did not conduct any concussion tests. The plaintiff’s evidence is that he was very drowsy, nauseous and in a great deal of pain. He felt like he was going to throw up. Despite this, he says that Ms Cocks did not seem concerned about his injuries, did not call an ambulance, nor did she attempt to call his mother. It is common ground that Ms Cocks did not call an ambulance. The rest of the plaintiff’s account is account is disputed by Ms Cocks.

16. [57]

    Ms Cocks’ evidence in her statement (Ex A(1), Tab 5) is that she recalls the plaintiff coming into the office with a friend at approximately 3:00 pm on the day of the incident. The plaintiff had a cut on his forehead and that she took him and his friend into the first aid room.

17. [58]

    She recalls that the plaintiff said words to the effect:

18. [59]

    She cleaned the cut on the plaintiff’s head and put a steri-strip over the cut. There was not a lot of blood from the cut. She believed it to only be a minor incident. The plaintiff did not tell her that he was in pain or that he felt nauseous. He was talking clearly and did not appear to be unwell.

19. [60]

    After she cleaned the cut, she recalls saying to the plaintiff words to the effect:

20. [61]

    He responded with words to the effect:

21. [62]

    As the plaintiff’s mother was his only listed point of contact, she said to him words to the effect:

22. [63]

    She says that the plaintiff refused to provide her with alternative contact details and then said words to the effect:

23. [64]

    She does not recall if she tried to contact the plaintiff’s mother.

24. [65]

    Ms Cocks said that the plaintiff seemed to be in a hurry to get home and did not want to stay in the school office. However, the plaintiff says that Ms Cocks insisted that he go home on the bus and that “she was worried about the end of school and wanted me out”. In cross examination, Ms Cocks denied that she was worried about the end of school and wanted the plaintiff out. I prefer and accept Ms Cocks’ evidence as it is consistent with her belief that the plaintiff’s injury was a minor one, he told her that she could not contact his mother as she was out of mobile phone range, which was confirmed by the plaintiff’s mother as being true.

25. [66]

    Before the plaintiff left, Ms Cocks said words to the plaintiff’s friend to the effect:

26. [67]

    She recalls being satisfied that the plaintiff was okay to travel on the bus home. At that time, he was able to answer questions and did not appear to be dazed.

27. [68]

    Ms Cock’s evidence is that she would not have let the plaintiff travel on the bus home if she thought it was unsafe and that he had suffered a serious head injury. Because she considered it a minor injury, she did not prepare an incident report in relation to the incident.

28. [69]

    In cross examination, Ms Cocks gave evidence that she advised the plaintiff to catch the bus, she requested another pupil to walk him to the bus stop because he was very unstable on his feet. His friend assisted him to the bus stop which was about 200 metres away.

29. [70]

    The Particulars of negligence pleaded in the statement of claim in relation to the first aid treatment rendered to the plaintiff are as follows:

30. [71]

    During the hearing, I disallowed the report of Ken Armanasco dated February 2018 prepared for the plaintiff being admitted in evidence: see Mattock v State of New South Wales (New South Wales Department of Education) (No 1) [2021] NSWSC 477.

31. [72]

    The defendant relied upon the expert’s report of Mr Meaney. Mr Meaney is a senior lecturer, Associate of the School of Education, RMIT University Melbourne, with special research interest in teacher education, sport psychology, physical and sport education and competitive sports. He has taught the safe practices and technical practical skills involved in the teaching of physical and sport education since 1967. He has provided an expert’s report dated 2 February 2021, in which he provides his opinions as to firstly, whether the PE class was conducted appropriately; and secondly, was the first aid response appropriate. He gave evidence and was cross examined.

32. [73]

    It is Mr Meaney’s opinion that Mr Blair’s first aid response was appropriate. Mr Blair checked for concussion. At no stage did he indicate that the plaintiff was unconscious and his assumption is borne out by my earlier findings. He opines that teaching or in any sport generally, if someone is unconscious or non responsive for even the slightest numbers of second, an ambulance has to be called and an ambulance would have been called onto the field if the plaintiff had been unresponsive.

33. [74]

    As to the first aid response, Mr Meaney considered that the first aid response provided by Ms Cocks, the first aid officer at the school was also appropriate given that the plaintiff’s mother’s mobile phone was out of range and the plaintiff apparently refused to give another number. I accept and agree with Mr Meaney’s opinion. He has based his opinion upon my earlier findings.

34. [75]

    The allegations in the plaintiff’s statement of claim that the defendant’s failure to provide adequate first aid care post incident exposed the plaintiff to potentially serious consequences and failure to provide appropriate monitoring and supervision of an injured and/or concussed person such as the plaintiff fails.

35. [76]

    When the plaintiff and his friend arrived at the bus stop, the plaintiff says that he asked him if he was okay to wait for the bus alone because he had to leave to get home. The plaintiff says that he could not really process what he was being told so he just agreed.

36. [77]

    When the bus arrived, the plaintiff says that tried to get onto the bus but he fell backwards down the stairs. As a result, the bus driver refused to let him travel on the bus. He then sat down in the gutter.

37. [78]

    The plaintiff’s home was at least 12 kilometres away from the school. He knew if he could get to one of his friend’s houses, he could phone his mum and she would pick him up. However, sometime after sitting down in the gutter, he wandered towards the beach because he could not get his bearings.

38. [79]

    Both Billy and Zac saw the plaintiff near the beach. After Zac came out of the surf, much to his surprise he saw the plaintiff sitting at the beach. Zac asked the plaintiff “what was the matter?” The plaintiff replied that he did not feel well. Zac then asked him how he was going to get home and the plaintiff said that his family were going to pick him up. Billy had also observed the plaintiff when the plaintiff was sitting down near the beach “dazed and confused”. Billy thought that the plaintiff seemed in trouble. Either Billy or Jake called his mother so she could pick him up. They waited until she arrived.

39. [80]

    The plaintiff says that he has no memory of the events from between 3:30pm and 5:30pm. Sometime after this, his mother arrived at the beach and found him with Billy.

40. [81]

    As I previously stated, Jake’s evidence is that he did not attend school on the day of the accident. He also has no recollection of going to the beach or seeing the plaintiff on this day. Interestingly, the plaintiff's mother says that it was Jake that called her from the beach and she had two missed calls from him. It is sufficient to say that either Zac, Billy or Jake called the plaintiff's mother and nothing turns on this, but it was not the plaintiff who called her.

41. [82]

    The plaintiff’s mother was at home most of the day. She had left home at 3:45pm to tutor a student. At that time, her mobile was out of range. This confirms Ms Cocks version of what the plaintiff told her at the first aid office.

42. [83]

    When the plaintiff’s mother arrived at the beach, the plaintiff was sitting with Jake and Billy in Billy’s car. She saw that he was injured and bleeding from his head. In cross examination, the plaintiff’s mother could not recall who it was who gave her the information regarding the details of how the injury occurred (T104.5-30).

43. [84]

    While she was driving the plaintiff to Pambula hospital, she says the plaintiff “passed out on two occasions”. She says that the plaintiff told her he could not remember what had happened from when he was injured. When they arrived at the hospital emergency at 5.50 pm, she says that the plaintiff’s speech was slurred and he was finding it hard to walk. Her evidence is that the drive from Eden to Pambula is around 11 kilometres and takes about 10 minutes driving time.

44. [85]

    When they arrived at the hospital, the plaintiff’s mother says that the nurse was “shocked that no ambulance had been called since as this was a clear case of concussion”. I think this statement alleged to have been made by the nurse is most unlikely because at that time of triage the plaintiff had not yet been examined by the doctors and the subsequent clinical notes reveal a different picture.

45. [86]

    The plaintiff’s mother’s evidence is that the plaintiff’s temple was still bleeding at this time. The hospital staff cleaned it up and put steri-strips over the cut. It is common ground that no head x-rays were taken and that the plaintiff had to stay in hospital under observation for four hours before being discharged.

46. [87]

    On 6 July 2012 (a week after the head knock), the plaintiff’s mother sent an email to Ian Moorehead, the principal of the school, expressing her concern as to the plaintiff’s treatment after the head knock. The plaintiff’s mother had been a teacher at the school. She was cross-examined on the content of the email and she admitted that some of what she wrote had come from other sources. The email reads as follows:

47. [88]

    In cross examination, the plaintiff’s mother could not recall where or when or from who she obtained the information about the incident she set out in the email. As to how she received the information that the head knock had occurred she gave evidence (at T97.22-26):

48. [89]

    Then at T102.11-18, in reference to the contents of the email:

49. [90]

    At T103.10-14:

50. [91]

    At T104.21-29:

51. [92]

    It is my view that the plaintiff’s mother’s statement is mainly an amalgam based on what she had been told by others.

52. [93]

    There is an important factual dispute as to whether the plaintiff was rendered unconscious by the head knock.

53. [94]

    Returning to the plaintiff and Callan’s evidence, the plaintiff says that he was knocked unconscious for several minutes. Callan’s evidence is that following the collision he and the plaintiff were lying on the ground for an unspecified period of time (Ex B). I do not accept their evidence as being accurate because if they were unconscious they would not have been able to gauge as to the duration. That evidence conflicts with that of the PE teacher. As Mr Blair was 15-20 metres away when the head knock occurred, it is most unlikely that he would have failed to notice such a serious situation where both students were rendered unconscious and both lying on the ground unconscious albeit for a short period of time.

54. [95]

    To recap, the plaintiff and his mother arrived at the hospital at about 5.30pm. The plaintiff was triaged. The plaintiff’s mother stayed with him until he was discharged.

55. [96]

    This clinical note entry is critical to the neurologists’ opinions (referred to later in this judgment).

56. [97]

    The clinical notes record (Ex A(3), Tab 52):

57. [98]

    The clinical notes also record that the plaintiff’s Glasgow Coma Scale at that time was 15/15 (the best achievable outcome).

58. [99]

    No head x-rays were taken, and the plaintiff stayed at the hospital under observation for 4 hours. At around 10:30 pm, plaintiff was discharged. His mother “kept an eye” on him over the next 72 hours. The plaintiff slept for most of that time.

59. [100]

    As to whether the plaintiff was rendered unconscious by the head knock, I make a finding that he was not, based on the following evidence. The fact that the plaintiff was not rendered unconscious by the head knock is supported by Mr Blair and the contemporaneous clinical notes from Pambula hospital. The clinical notes record that the plaintiff did not suffer unconsciousness at the time of the incident. Also, at the time of the examination the clinical notes of the emergency department indicate that the plaintiff was alert. Although the plaintiff’s mother stated that the plaintiff passed out on two occasions, the clinical records indicate that the plaintiff had a “brief sleep” en route to the emergency department.

60. [101]

    Further, when the plaintiff was cross examined as to whether or not he lost consciousness the following exchange took place (T 166.33-50):

61. [102]

    Hence, I make findings that the plaintiff does not know whether or not he lost consciousness after the head knock. Mr Blair did not observe that either the plaintiff or Callan were rendered unconscious after the head knock. Mr Blair immediately conducted tests to assess the severity of the plaintiff’s head knock and concluded that the plaintiff was dazed but not seriously injured. At the first aid office, Ms Cocks spoke to and observed the plaintiff. She formed the opinion that the plaintiff had suffered a minor injury. The only evidence that the plaintiff lost consciousness was from the plaintiff’s mother who said that the plaintiff “passed out twice” on the drive to Pambula hospital, but it was recorded in the clinical notes as he had “brief sleep en-route to ED.” It is more likely than not that while the plaintiff was not rendered unconscious as a result of the head knock, but I accept that he may have suffered concussion (see Dr Sutton’s evidence later in this decision).

62. [103]

    There is also a dispute as to when the onset of the plaintiff’s seizures first occurred.

63. [104]

    The plaintiff recorded in his statement that his first seizure occurred about 8 days after the accident when he was camping with his friends. He had a seizure in his tent (Ex A(1) Tab 4 at [53]). He stated that he suffered another seizure shortly after that in November 2012 (Ex A(1) Tab 4 at [54]).

64. [105]

    Despite initially agreeing that his first grand mal seizure occurred a few days after the accident (T23.15), the following exchange between counsel for the defendant and plaintiff took place (T47.15-35):

65. [106]

    The plaintiff’s admission to the hospital following his seizure at the Caltex service station is recorded in clinical notes dated 25 November 2012 (Ex A(3), Tab 52 at [647]). These notes indicate an episode of head trauma without loss of consciousness approximately five months earlier. The notes also record an episode that had occurred approximately three weeks earlier (ie, 4 November 2012) when it was likely that the plaintiff had a nocturnal generalised seizure while camping with friends.

66. [107]

    During this hospital admission dated 25 November 2012 to the hospital, a CT brain study was conducted (Ex A(3), Tab 52 at [651]). No abnormalities were documented.

67. [108]

    Dr Reid from Curalo Medical Clinic (the plaintiff’s former GP) referred the plaintiff to Dr Mark de Souza, paediatrician at Canberra hospital, who the plaintiff saw on the 10 January 2013. The report from this consultation records as follows (Ex A(3), Tab 50 at [596]):

68. [109]

    It was noted by Dr de Souza that a CT head scan (undertaken at Pambula hospital) showed no structural abnormality and that a trial of Tegretol had led to unacceptable side effects. This history does not refer to an epileptic seizure occurring 8 days after the head knock.

69. [110]

    The first time the plaintiff’s mother became aware of him having a seizure was after he was hospitalised following the seizure at the Caltex service station. On 1 April 2013 was the first time she actually witnessed the plaintiff having a seizure when he was in the shower. She had to get him out of the shower and call an ambulance (Ex F).

70. [111]

    The subsequent hospitalisation on 1 April 2013 is recorded in the clinical notes from the hospital (Ex A(3), Tab 52 at [628]). These clinical notes record that the plaintiff had suffered a seizure while in the shower and he had hit is head. The notes also record that he had suffered two previous seizures and that these past seizures were induced by ‘over doing it’ and ‘drinking and partying too hard’.

71. [112]

    During cross examination, the plaintiff agreed that during the initial onset of seizures, it was usually after a night of drinking and not sleeping when they occurred (T48.12-15).

72. [113]

    The plaintiff was then referred by his current general practitioner, Dr Rowlands (the GP) of the Curalo Medical Clinic to Dr Andrew Hughes, Neurologist at Canberra hospital.

73. [114]

    On 20 June 2013, the plaintiff saw Dr Hughes and was referred for an electroencephalogram (EEG) which took place on 8 July 2013. Again, no abnormalities were found.

74. [115]

    During the period, before the plaintiff consulted Dr Hughes on 1 August 2013, he suffered two more seizures. One when he was in the car being driven to a football game (rugby league) and another at 2:30am when he had been up late watching movies (T50.20-40).

75. [116]

    Clinical notes from the hospital dated 3 September 2013 indicate that the plaintiff was admitted after having been witnessed to have suffered a seizure (Ex A(3), Tab 52 at [624]). The records indicate that he suffered lacerations on his tongue. These records also indicate that his first seizure occurred in September 2012 and that he had seven seizures since then.

76. [117]

    On the 3 January 2014 the plaintiff was hospitalised after he suffered a seizure that caused him to fall off the top bunk of his bed and cut the right side of his head (T49.20). These clinical notes from this admission indicate that he had missed his last three doses of Epilim (Ex A(3), Tab 52 at [616]).

77. [118]

    It is not disputed that throughout 2015 and 2016, the plaintiff experienced seizures on average every 2-6 weeks, which he says lasted for 20-30 minutes. As his seizures continued to increase in frequency, and he was referred back to Dr Hughes in June 2016.

78. [119]

    On 7 July 2017, the plaintiff was admitted to Shoalhaven hospital due to suffering two more seizures. The initial seizure occurred around 9:30 pm. The second seizure was around 1:00 pm on that day. Following the second seizure, the plaintiff fell to the ground which caused his two lower teeth to be loosened. A CT head scan was undertaken in which no abnormalities were detected. The clinical notes state that “if he sleeps for more than one hour, he usually remains seizure free” (Ex A(3), Tab 55 at [721]).

79. [120]

    On 3 June 2019, the plaintiff was admitted to Prince of Wales hospital for a review by Dr Robert Morton, a neurology consulting clinician. His notes record (Ex A(3), Tab 46):

80. [121]

    Aside from the history the plaintiff gave in his statement dated 16 April 2019 (some 6 years after the collision), 3 June 2019 is the first time the plaintiff has given a history to the medical practitioners about suffering a seizure 8 days after the head knock. What the plaintiff says in his statement as to when his first seizure occurred is inconsistent with the contemporaneous records.

81. [122]

    So far as the report, dated 3 June 2019, records that the plaintiff “passed out on the beach (from approximately 3.30 pm-5.00 pm)” that accords with the plaintiff’s evidence. However, neither Zac nor Billy witnessed him being unconscious when he says he was. The plaintiff’s memory of what occurred at the beach and later repeated to Dr Morton, particularly as to timing is, in my view, unreliable.

82. [123]

    The defendant submitted that the objective evidence is that there was a delay of some months before the commencement of seizures. The plaintiff was taken to Pambula hospital on 25 November 2012 after having a seizure at breakfast (at the end of a night out). The history refers to a smaller seizure “a couple of weeks ago”. On both occasions, seizures occurred after the consumption alcohol and sleep deprivation.

83. [124]

    From the timeline recorded in the medical records, it is my view that it is more likely than not that the onset of the plaintiff’s seizures occurred around early November 2012, not 8 days after the incident.

84. [125]

    The plaintiff has been diagnosed with generalised seizures, non-traumatic in origin, at the Prince of Wales Hospital Epilepsy Unit by Drs Zentner (neurologist) and De Souza (paediatrician).

85. [126]

    Over the years, various medications have been tried by the plaintiff. His says that he ceased taking them because he suffered unwarranted side effects. The plaintiff has had varying periods of being seizure free and at one point achieved a sufficient seizure free period to obtain a driving licence through lifestyle modification and compliance with treatment. The plaintiff in his younger years has elected, up until recently, to go for long periods without taking medication.

86. [127]

    It is common ground that in the last few years, the plaintiff has had seizures, on average, once a month (T60.15).

87. [128]

    Since he has been in a relationship with his partner Jordan Parkes and more recently now that they have had a baby, the plaintiff is prepared to try new medication and adhere to taking them as prescribed.

88. [129]

    I will return to the topic of whether the head knock caused epilepsy and the neurologists’ opinions after I have considered liability.

Liability

1. [130]

   My earlier findings are that it was a PE class comprising of the top graded males in Year 9. Mr Blair, the PE teacher, instructed the PE class, including the plaintiff to participate in a hybrid game mainly based on touch football. A football is kicked from the ground high into the air when students from either team compete to catch the football. Apart from the initial ball up the only contact between the students involved a defensive player tapping an offensive player, constituting a tackle, one of a series of 6. Every set of 6 tackles that a team had possession, they had the opportunity to use a kick to gain ground, force an error from the opposition, regain the ball or score a try.

2. [131]

   Earlier in this judgment I have dealt with the claim in negligence in relation to the school’s first aid treatment rendered to the plaintiff after the head knock. Those allegations were not made out.

3. [132]

   As to the PE class, the plaintiff in his statement of claim pleads as follows.

4. [133]

   The manner in which the subject touch football game was commenced constituted a risk of harm to students, including the plaintiff, which risk was foreseeable, not insignificant, and was a risk that reasonable persons in the position of the staff at Eden Marine High School should have taken precautions to protect students from (S/C [11]).

5. [134]

   By reason of the risk of harm created by Mr Blair, the plaintiff while attempting to catch the football from the high ball kick off collided with another student Callan Sinclair on the other team (S/C [12]).

6. [135]

   As a consequence, the plaintiff sustained significant injury and suffered loss and damage. (S/C [13]).

7. [136]

   The plaintiff’s injury, loss and damage were caused by the negligence of Mr Blair, teacher at Eden Marine High School (S/C [14]).

The defence

1. [137]

   By defence filed 19 October 2018, the defendant relevantly pleads:

2. [138]

   The defendant does not admit that the plaintiff sustained significant injury, loss and damage as alleged in [13] of the S/C, or at all (D [7]).

3. [139]

   The defendant denies that it, its servants or agents, was negligent as alleged in [14] of the S/C, including each subparagraph (D [8]).

4. [140]

   In response to [15], the defendant (D [9(a)-(b)]:

5. [141]

   The defendant denies that the plaintiff is entitled to damages, interest and costs as alleged in [16] of the S/C, or to any relief at all (D [10]).

6. [142]

   The plaintiff then pleads Part 5 of the Civil Liability Act as follows.

7. [143]

   Further, or in the alternative, the defendant relies on the provisions of section 5B of the Civil Liability, and says that (D [11(a)-(d)]):

8. [144]

   In the alternative, the defendant relies upon the provisions of ss 5F, 5G and 5H and says that if there was a risk (which is not admitted), it was an obvious risk (D [12]).

9. [145]

   In the alternative, the defendant relies upon s 5I, and says that if there was a risk (which is not admitted), it was an inherent risk involved in the participation of school sport (D [13]).

10. [146]

    Further and in the alternative, in response to the statement of claim as a whole, the defendant says that at the material time the plaintiff was participating in a dangerous recreational activity and the risk of injury was obvious within the meaning prescribed to those terms by s 5K such that the defendant is not liable for any harm suffered by the plaintiff pursuant to s 5L (D [14]).

The evidence on liability

1. [147]

   The plaintiff also referred to the Physical Activity and Sports Studies Course Years 7 to 10 syllabus as at 2004 that is set out at CB 896-954 (the syllabus).

2. [148]

   The following passages from the Board of Studies were highlighted by the plaintiff.

3. [149]

   In relation to the “Physical Activity and Sports Studies Content Endorsed Course Years 7-10 Syllabus” (“Physical Activity Syllabus”) as at September 2004 is set out at CB 896-954. They are as follows:

4. [150]

   I accept that these are extracts from the Physical Activity Syllabus.

5. [151]

   The plaintiff also referred to the touch football rules which he asserted are relevant here and were breached by the defendant.

6. [152]

   Rules 6.2, 6.3 and 6.6, Touch Football Association Playing Rules and Referees Signals, 7th ed 2007 read:

7. [153]

   Mr Meaney, the defendant’s expert on liability, described the game that the plaintiff was playing as a hybrid game. It included three elements, Australian rules football, NFL and touch football. This accords with my earlier findings.

8. [154]

   Mr Meaney’s opinion is that the hybrid game played fitted nicely into the PE program at the school and it was part of the Board of Studies in NSW K to 10 framework. It fits into the syllabus and also into the scope and sequence planning of the physical education program. It also fits in with the lesson intentions at the time. In teaching, teachers must state what their lesson intentions are in order to do some evaluation at the end.

9. [155]

   When asked by what means was the game commenced, Mr Meaney referred to Mr Blair’s written statement that he employed a ball up (this accords with my findings). During the ball up there could be contact but more likely there could be a bump. There were 6 tackles, the team that had possession of the ball had the opportunity to either use a kick to either gain ground, force an error from the opposition, regain the ball, or score a try. He identified that there was a possibility that accidental contact could occur when players were competing for a ball in the air.

10. [156]

    Question 2(b) asked Mr Meaney whether the means by which the game commenced was an appropriate activity for the PE class? He answered, in AFL once the ball is bounced and is tapped out, the person receiving the ball from the tap quite often kicks it and this could have been at the commencement of the game. If the ball was put up, a ball up and tapped out, the receiving person in AFL very often kicks it forward.

11. [157]

    The only contact between the students involved the high ball kick and where a defensive player may tap an offensive player, constituting a tackle, one of a series of 6. Every set of 6 tackles that a team had possession, they had the opportunity to use a kick to gain ground, force an error from the opposition, regain the ball or score a try.

12. [158]

    Accidental contact was a possibility when students were competing for a ball in the air as a result of a ball up, a kick or a pass. Mr Meaney believes that Mr Blair managed and conducted the PE class game appropriately.

13. [159]

    As previously stated, I accept that a high ball kick off does not accord with the Touch Football Association Playing Rules referred to earlier in this judgment but the game actually played in the PE class was a hybrid game. It was not a game played under the auspices of the Touch Football Association.

14. [160]

    I agree and prefer Mr Meaney’s evidence based on his knowledge and experience. He is a senior lecturer at RMIT University Melbourne, with special research interest in teacher education, sport psychology, physical and sport education and competitive sports. He has taught the safe practices and technical practical skills involved in the teaching of physical and sport education since 1967.

15. [161]

    He has experience with the Physical Activity Syllabus and practical experience with safe practices and technical practical skills involved in the teaching of physical and sport education. I accept and prefer his evidence that the hybrid game played fitted nicely into the PE program at the school and it was part of the Board of Studies in NSW K to 10 framework and it also fits into the syllabus and also into the scope and sequence planning of the physical education program. It also fits in with the lesson intentions at the time. In teaching, teachers must state what their lesson intentions are in order to do some evaluation at the end.

16. [162]

    He accepts that during the high ball up there could be contact but more likely there could be a bump. There were 6 tackles, the team that had possession of the ball had the opportunity to either use a kick to either gain ground, force an error from the opposition, regain the ball, or score a try. He identified that there was a possibility that accidental contact could occur when players were competing for a ball in the air.

17. [163]

    Accidental contact, he says, was a possibility when students were competing for a ball in the air as a result of a ball up, a kick or a pass. He believes that Mr Blair managed and conducted the PE class game appropriately. The hybrid game played in the PE class comprising of the top graded student, some of whom experienced and skilled rugby league players (this also accords with my earlier findings). While I accept that there was a possibility that accidental contact could occur when players were competing for a high ball at kick off, I find that the hybrid game was conducted in a safe manner and Mr Blair conducted the game appropriately.

The Civil Liability Act

1. [164]

   These proceedings are governed by the provisions of the Civil Liability Act. In its defence the defendant relies upon ss 5L, 5K, 5F, 5I, 5B, 5C, 5D and 5E of the Civil Liability Act.

2. [165]

   It is important to appreciate that while a school has a duty of care in relation to its students, a school is not absolutely liable for injuries sustained by pupils while they are under the supervision of their teachers. A school is not an insurer of its pupils: see Trustees of the Roman Catholic Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 (“Kondrajian”).

3. [166]

   The starting point is s 5L of the Civil Liability Act that provides that there is no liability for harm suffered from the materialisation of an obvious risk of a dangerous recreational activity. Even if the plaintiff establishes duty, breach, and causation in relation to his claim in negligence, if s 5L applies, the defendant will have a complete defence: see Leeming JA, Goode v Angland [2017] NSWCA 311 (“Goode”) at [5] and [185]. As Leeming JA says, the application of s 5L is therefore the logical starting point for consideration of the plaintiff’s claim: Goode at [185].

Whether the risk of harm was “obvious”

1. [167]

   In determining the application of s 5L in this case, it is first necessary to consider whether the risk undertaken by the plaintiff was “obvious” under the Civil Liability Act.

2. [168]

   Sections 5F, 5G, 5H and 5K read:

3. [169]

   The plaintiff was in Year 9 and 15 years old at the time of the collision He is considered in law to be a minor. The PE class in which he participated was a compulsory one.

4. [170]

   In Holroyd City Council v Zaiter [2014] NSWCA 109 (“Zaiter”), Hoeben JA (with whom Emmett and Gleeson JJA agreed) referred to the duty of minors to exercise reasonable care for their own safety. In Zaiter, the respondent was a 9 year old child who was injured when he rode his bicycle into an unfenced drainage channel. Hoeben JA stated at [75]-[76]:

5. [171]

   So far as obvious risk is concerned, Hoeben JA in Zaiter had this to say:

6. [172]

   I will return to this topic shortly. The standard of reasonableness is what is to be expected of a 15 year old boy in the position of the plaintiff.

7. [173]

   In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 (“CG Maloney”), Bryson JA observed at [173] that “[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated”.

8. [174]

   The question for this Court is whether the risk was one which, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. That was the position at common law as stated in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126]-[129] (“Wyong Shire Council”); Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 per Tobias JA at [161] (“Vairy”), and continues to apply under the Civil Liability Act: see Tobias JA in Jaber v Rockdale City Council [2008] NSWCA 98 (“Jaber”).

9. [175]

   “Obvious”, under its ordinary meaning and in s 5F(1), means something which is “clearly apparent or easily recognised or understood”: see Jaber at [35]. Whether a risk is obvious is a matter to be determined objectively.

10. [176]

    In Vairy, as stated in Jaber, Tobias JA provided further clarity to this concept at [162]:

11. [177]

    Applying this reasoning, the condition would be that the plaintiff is compulsorily required to play in the PE class that involves a contested high ball kick off. Under such a condition, the risk would be that contesting a high ball kick might result in injury.

12. [178]

    As such, the risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that contesting a high ball kick with another individual inevitably brings with it the risk of injury.

13. [179]

    Under s 5G, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves, on the balance of probabilities, that he or she was not aware of the risk. A person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk (see Emmett JA at [202] in Collins v Clarence Valley Council [2015] NSWCA 263).

14. [180]

    The plaintiff has some degree of immaturity, he is boisterousness and his general background are relevant considerations. The plaintiff was quite active, and his minor misdemeanours in his school records, can best describe him as “a lively lad who did not appreciate that there was obvious risk”. In his position, he does not fall foul of s 5F because it says, “For the purposes…of that person.” That includes matters that “are patent or a matter of common knowledge.”

15. [181]

    In this case, “a reasonable person in the position of the plaintiff” means a young person in year 9 who was a skilled and experienced at playing Rugby League and/or Australian rules. It would have been obvious to a reasonable person in the position of the plaintiff that there was the possibility of a collision involved in playing the game (even if there was a somewhat low probability of that occurring).

16. [182]

    The possibility that the plaintiff may be involved in a collision (involving a head clash) while competing for the ball after a kick was an obvious risk of the activity in which he was engaged. That risk was obvious within the meaning prescribed to those terms by s 5F of the Act.

17. [183]

    The plaintiff collided with Callan on the other team while attempting to catch the football. The clash suffered from the collision was the result of the materialisation of an obvious risk of the activity.

18. [184]

    In considering s 5K, both the likelihood of harm and the magnitude of injury is relevant: see Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17 at [28] (Falvo). The “risk of physical harm” may be “significant” if the risk is low but the potential harm is catastrophic. The “risk of physical harm” may be “significant” if the likelihood of the occurrence and the harm is more than trivial: Falvo at [31].

19. [185]

    The risk of an injury included a head clash arising from a collision between two or more players competing for the football. The risks associated, as a result of a collision, have a potential catastrophic effect that are not trivial in nature.

20. [186]

    It would have been obvious to a reasonable person in the position of the plaintiff that there was the possibility of a collision involved in playing the game (even if there was a somewhat low probability of that occurring). The possibility that the plaintiff may be involved in a collision (involving a head clash) while competing for a ball in the air (whether it was following a ball up, kick or punt) was an obvious risk of the activity in which he was engaged. That risk was obvious within the meaning prescribed to those terms by s 5F of the Act.

21. [187]

    The plaintiff collided with Callan Sinclair on the other team while attempting to catch the football. The head knock suffered from the collision was the result of the materialisation of an obvious risk of the activity.

22. [188]

    The defendant is therefore not liable for any harm suffered by the plaintiff pursuant to s 5L.

23. [189]

    The plaintiff was a very skilled, experienced and talented rugby league player who played above his grade in rugby league at the time of the head knock. The standard of reasonableness is what is to be expected of a 15 year old boy who was a skilled experienced and a talented rugby league player.

24. [190]

    The plaintiff had played rugby league since a young age, playing one game under nines and then again at under 13s (T30.20-25). At the time of the incident it was about halfway through the rugby league season when he was playing under 18s for Eden Tigers as a winger or a fullback (T30.25-35). He had experience playing rugby league and competing for high balls (T30.45-50).

25. [191]

    This evidence was corroborated by the evidence of Mr Slater in cross examination where he gave evidence (T80.14; T81-9) that at the time of the head knock the plaintiff had played half a season of rugby league with the plaintiff leading up to the accident. He played in the position of either winger or fullback. The plaintiff’s position was either a winger or a fullback. On a weekly basis Mr Slater would put high balls towards the opposition wing and fullback and the plaintiff would attempt to go through and catch them. Those high balls were contested high balls. From time to time there would be collisions in the air when this was happening. Mr Slater witnessed the plaintiff being tackled and making tackles. The other side would put up high balls and the plaintiff would have to try and catch them.

26. [192]

    Here “a reasonable person in the position of the plaintiff” means a young person in year 9 with experience playing mainly rugby league experience playing Australian rules. Accidental contact was a possibility when students were competing for a ball in the air as a result of a ball up.

27. [193]

    Whether it was a PASS or PE class, it was comprised of the more highly skilled and athletically able students. The plaintiff was a skilled rugby league player. Namely, those more highly skilled athletic students were in the class, as was the plaintiff who was in that class in at the time of the incident. (T29.3-T29.10).

28. [194]

    While I accept that playing PE was compulsory and the plaintiff and was aged 15 years at the time, with his skill and experience in playing rugby league, particularly as to kicking and catching high balls in the air, he would have been able to make a considered decision based on his experience whether it was safe for him to contest the ball or if it was not safe to back off. He decided that it was safe for him to contest the high ball, a person in the position of the plaintiff would not have thought that the risk was obvious.

Was the game a “dangerous recreational activity”?

1. [195]

   The defendant relied upon the operation of Part 1A, Division 5 (Recreational Activities) of the Civil Liability Act. Section 5J provides that Division 5 only has application if the plaintiff was engaged in “recreational activity”. It is under this division that the defendant has pleaded that pursuant to s 5L, it is not liable to the plaintiff as his injury resulted from the materialisation of an obvious risk.

2. [196]

   The defendant bears the onus of demonstrating that the relevant activity in s 5K fits into any of the above definitions: see Falvo at [122]-[123] (Ipp and Tobias JJA agreeing).

3. [197]

   So far s 5K is concerned, Ipp JA (with Hunt AJA and Adams J agreeing) in Falvo had this to say:

4. [198]

   Ipp JA stated at [18] that the risk of physical harm was “significant” if the prospect of the harm occurring lay somewhere between “trivial” and “likely”.

5. [199]

   In summary, Ipp JA said that “significant risk of physical harm” in the definition of “dangerous recreational activity” had to be read as a whole, in effect, distributively, so as to require not only a significant risk but also a risk of significant injury. Due regard also has to be paid to the word “dangerous”. This led his Honour to dismiss the suggestion that Oztag, a sport requiring athleticism but little physical contact and use of a soft ball, was a dangerous recreational activity.

Significant risk of harm

1. [200]

   Section 5L of the Civil Liability Act reads:

2. [201]

   In considering s 5K, both the likelihood of harm and the magnitude of injury is relevant. The “risk of physical harm” may be “significant” if the risk is low but the potential harm is catastrophic (Falvo). The “risk of physical harm” may be “significant” if the likelihood of the occurrence and the harm is more than trivial.

3. [202]

   The risk of an injury included a head clash arising from a collision between two or more players competing for the ball. The risks associated, as a result of a collision, have a potential catastrophic effect that are not trivial in nature.

4. [203]

   The hybrid game played by the plaintiff in the PE class falls into the category of a recreational activity.

5. [204]

   From my findings made under s 5K and in accordance with Mr Meaney’s view that while the risk of physical harm was a possibility, the hybrid game played was not dangerous. It is my view that when this type of hybrid game is played throughout the school PE and Sports Curriculum, there is a risk that two players may physically collide in the air, but the risk in my view is not a significant one. Mr Meaney’s finding that the risk is a possibility, which I accept, does not negate a further finding that such a risk is ‘very slight’ (Falvo).The hybrid game, as detailed, is predominantly non-contact. A physical collision in the air, on the evidence, is only possible in a distinct period of the game (i.e. the high ball kick off). The game is premised on touch being the means of contact. If a ball is in the air off a high ball kick off there is no certainty two or more players will contest the ball. Even if two or more player do contest the ball, there again is a less than likely chance of a head collision such as that on the facts. Although a possibility, I consider the risk is, in overall terms, ‘very slight’ in a hybrid game such as that the subject of this matter. The “risk of physical harm” is not significant.

Section 5I

1. [205]

   Section 5I reads:

2. [206]

   An ‘inherent risk’ is defined to mean a risk of something occurring which cannot be avoided by the existence of reasonable care and skill.

3. [207]

   In Wyong Shire Council v Vairy [2004] NSWCA 247 (“Vairy”) an inherent risk was discussed by Tobias JA at [164]:

4. [208]

   The collision that occurred on 29 June 2012 was the materialisation of an inherent risk that there may be a collision between two players while competing for the ball in the air in the course of the game. That risk could not be removed by the exercise of due care within the rules of the game. The only way the risk could be avoided is by not playing the game.

5. [209]

   Unlike being dumped by a wave when body surfing where a person becomes subject to the will of the wave (as was the case in Vairy), the plaintiff with his skill and expertise was in a position to have exercised reasonable care and skill not to contest the high ball. The risk here is not an inherent one.

6. [210]

   The defendant’s defences pursuant to ss 5F, 5G, 5H, 5I, 5K and 5L of the Civil Liability Act fail.

7. [211]

   Liability pursuant ss 5B, C, and D of the Civil Liability Act now needs to be considered.

8. [212]

   It is common ground that the defendant, a school, owed the plaintiff, a student, a duty of care.

9. [213]

   Section 5B of the Civil Liability Act sets out the necessary, but not sufficient, pre-requisites for civil liability to arise. Although headed “duty of care”, it is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [13] (“Adeels Place”).

10. [214]

    Section 5B and 5C read:

11. [215]

    The inquiry in s5B of the Civil Liability Act asks what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.

12. [216]

    Remembering here that the plaintiff was a minor who is a reasonable person in the position of a 15 year old who is skilled and experienced in rugby league, in normal circumstances the expectation that the plaintiff would exercise reasonable care goes not merely to the assessment of breach of duty, but is “a specific element contained, as a matter of law, in the scope of the duty of care”: see Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 (“Dederer”) at [45] per Gummow J.

13. [217]

    The effect of s 5C(b) of the Civil Liability Act is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301.

14. [218]

    The test is always whether the plaintiff, and in this case a minor, has proved that the defendant, who is owed a duty of care, has not acted in accordance with reasonable care: see Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. The fact that there were measures which could have been taken to avert or diminish the risk that materialised do not establish breach of duty: see Thornton v Sweeney [2011] NSWCA 244.

15. [219]

    A plaintiff must fail in an action for negligence framed in terms of a failure to take precautions, unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: see Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [50].

16. [220]

    The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

17. [221]

    In order to succeed, the plaintiff must show that it is more probable than not that, but for the breach, the “particular harm” which materialised would not have been suffered. This involves two elements: “factual causation” and “scope of liability”: see Adeels Palace at [42]; Wallace v Kam (2013) 297 ALR 383; [2013] HCA 19 at [12].

18. [222]

    Determination of factual causation under s 5D(1)(a) is a statutory restatement of the “but for” test of causation. That determination is “entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E”: Wallace v Kam at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].

19. [223]

    The determination of “scope of liability” involves a value judgment (Wallace v Kam), as does the determination of “factual causation”: see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].

20. [224]

    The requirement under s 5D(1) for the plaintiff to demonstrate “factual causation” and “scope of liability” do not include the common law concepts of material contribution or increase in risk: see Woolworths Ltd v Strong [2010] NSWCA 282 (“Woolworths”) at [47]-[48]. Rather, causation requires a determination that “the negligence was a necessary condition of the harm”.

21. [225]

    The application of s 5D(2), an exceptional case, requires evidence: see King v Western Sydney Local Health Network [2013] NSWCA 162 per Hoeben JA at [155] It also needs to be raised on the pleadings: King per Ward JA at [222]. Here, the plaintiff has not submitted that this is an exceptional case, nor did he adduce any evidence to support the proposition. Hence, s 5D(2) is not applicable.

22. [226]

    While a school has a duty of care in relation to its students, a school is not absolutely liable for injuries sustained by pupils while they are under the supervision of their teachers. A school is not an insurer of its pupils: see Kondrajian.

23. [227]

    Where an injury is caused by an unfortunate occurrence which reasonable precautions could not have prevented, no breach of duty will have occurred. The mere fact that a serious injury or death may occur while children are playing a game at school will not automatically result in a finding that a breach of duty has occurred. The fact that such a devastating result was foreseeable will not necessarily mean that liability is established (Kondrajian at [61]-[62]).

24. [228]

    Further, in determining whether reasonable steps were taken to prevent injury occurring in a game are factors such as: the benefits of the game, the size of the risk involved, the probability of those risks materialising, the degree of possible inadvertent conduct on the part of the participating children, the level of those children's skill (Kondrajian at [65]).

25. [229]

    Every sport or physical activity carries with it a foreseeable risk of injury. Yet society accepts that it is desirable for children to acquire skills in sport and physical activities. Games and activities that involve potential collision 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 (Kondrajian at [69]).

26. [230]

    The question of what amounts to reasonable care in a given case must be seen in light of the fact that it is neither practical or desirable to maintain a system of education that seeks to exclude every risk of injury: Kondrajian at [66], see also Wright v Cheshire County Council (1952) 2 All ER 789 per Morris LJ at 796.

27. [231]

    As McNair J observed in Jeffrey v London County Council (1954) 52 LGR 521 at 523:

28. [232]

    A hybrid game is an appropriate activity for a PASS class (my finding is that it was a PE class).

29. [233]

    Kicking as part of a game is not a breach of duty of care. The plaintiff says that touch games supervised by Mr Blair commenced with a kick. Therefore, the kick-off was not a random or unexpected event.

30. [234]

    The fact that a risk was foreseeable and preventable does not mean it was negligent: see Shaw v Thomas [2010] NSWCA 169 This concept was also succinctly described in terms of occupiers’ liability by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, where his Honour stated:

31. [235]

    All that is required is reasonable care: see Dederer.

32. [236]

    The defendant is not negligent merely because it fails to take an alternative course or conduct that would have eliminated all risk of harm. Rather it is for the plaintiff to demonstrate that the defendant was not acting reasonably in failing to take the course of conduct that he suggests is reasonable: see Thornton v Sweeney [2011] NSWCA 244 at [131].

33. [237]

    The seriousness of the harm needs to be tempered by the social utility of the risk taking activity pursuant to s 5B(2)(d). When games are properly controlled and supervised, allowing children to participate in them is not, in the absence of special circumstances, negligent: see Kretschmar v State of Queensland (1989) Aust Torts Reports 80-272.

34. [238]

    Where an injury is caused by an unfortunate occurrence that reasonable precautions could not have prevented, no breach of duty will have occurred: see Kady v Trustees of the Roman Catholic Church, unreported, NSWCCA, 19 February 1997; Nobrega v Trustees of the Roman Catholic Church, unreported, NSWCCA, 23 March 1999; Cooke v Kent County Council (1949) 82 Lloyds LR 823; Wright v Cheshire County Council (1952) 2 All ER 789; Kretschmar v State of Queensland (1989) Aust Torts Reports 80-272.

35. [239]

    The hybrid game played in the PE class where the plaintiff was a participant had risks. The acceptance of those risks is not necessarily a breach. There was no breach of duty in relation to the conduct of the game or the reaction to the collision.

36. [240]

    The seriousness of the harm needs to be tempered by the social utility of the risk taking activity pursuant to s 5B(2)(d). When games are properly controlled and supervised, allowing children to participate in them is not, in the absence of special circumstances, negligent. I take into account the social utility of developing physical fitness and sports skills to PE students at school.

37. [241]

    The hybrid game played by the top graded males in PE class was supervised by a PE teacher who also acted as the referee. The game was properly controlled and supervised. As previously stated, the plaintiff had played rugby league since a young age, playing one game under nines and then again at under 13s (T30.20-25). At the time of the incident he was about halfway through the rugby league season when he was playing under 18s for Eden Tigers as a winger or a fullback (T30.25-35). He had experience playing rugby league and competing for high balls (T30.45-50).

38. [242]

    This evidence of the plaintiff’s experience was corroborated by the evidence of Mr Slater in cross examination where he gave evidence (T80.14-81.9) that at the time of the head knock the plaintiff had played half a season of rugby league with the plaintiff leading up to the accident. He played in the position of either winger or fullback. The plaintiff’s position was either a winger or a fullback. On a weekly basis Mr Slater would put high balls towards the opposition wing and fullback and the plaintiff would attempt to go through and catch them. Those high balls were contested high balls. From time to time there would be collisions in the air when this was happening. Mr Slater witnessed the plaintiff being tackled and making tackles. The other side would put up high balls and the plaintiff would have to try and catch them.

39. [243]

    The defendant’s expert Mr Meaney’s opinion is that accidental contact was a possibility and the game played by the students and the supervision by Mr Blair was appropriate. The risk was foreseeable, the risk of physical harm was insignificant. A reasonable person in the plaintiff’s position was in a position to make a considered decision whether he should contest the high ball (s 5B(1)(a)-(c)). As to s 5B(2), the reasonable person would have considered the probability of harm and whether he would be injured and the burden of contesting the high ball was not burdensome. In all of these circumstances, it is my view that the defendant did not breach its duty of care it owed the plaintiff.

40. [244]

    The next issue to be determined is that of causation.

41. [245]

    Section 5D of the Civil Liability Act reads:

42. [246]

    This is the most difficult issue to resolve in this case. The joint report from the neuropsychologists establishes that the plaintiff does not suffer any cognitive impairment.

43. [247]

    Professor Bruce Brew provided 3 medical reports dated 5 March 2019, 1 May 2019 and 26 August 2019. Dr Ian Sutton provided 2 medical reports dated 27 February 2019 and 6 November 2019.

44. [248]

    On 6 November 2020, a conclave was held between Professor Bruce Brew and Dr Ian Sutton. A joint report dated 6 November 2020 was produced in evidence (CB 17.70).

45. [249]

    At the hearing, Professor Bruce Brew and Dr Ian Sutton (the neurologists), gave lengthy concurrent evidence.

46. [250]

    The neurologists were provided with a set of assumptions and provided opinions in accordance with them. At the outset they both acknowledged that they have been given conflicting interpretations and no there was firm data as to what actually occurred. While they were giving concurrent evidence, information given by lay witnesses at the hearing was in relation to the head knock, whether the plaintiff was rendered unconscious, at the first aid office, the bus stop, the beach and the trip to the hospital were read to them from the evidence contained in the transcript.

47. [251]

    The neurologists agree on the following:

48. [252]

    The neurologists disagree firstly, as to whether the plaintiff was rendered unconscious by the head knock; secondly, could someone with mild or mild to moderate traumatic brain injury suffer seizures as a result of the head knock; thirdly, as to the type of epilepsy; and finally, as to whether the plaintiff suffered for any cognitive dysfunction arising from the head trauma. As to whether the plaintiff suffered cognitive dysfunction arising from the head trauma, the neuropsychologists say he did not and I accept their joint opinion.

49. [253]

    I will deal with the disputed issues in turn.

50. [254]

    The neurologists were read excerpts from the transcript of the plaintiff’s, Mr Blair and the plaintiff’s mother evidence (some of which I have made findings that they are unreliable) mainly on the topic of unconsciousness (see T157). Professor Brew’s opinion is that the evidence is consistent with a brief impairment of unconsciousness.

51. [255]

    Dr Sutton disagreed. He explained that the first thing that he established is that there was no retrograde amnesia. The plaintiff can remember events up until the ball was kicked up. As to anterograde amnesia in terms of what the plaintiff can remember, he can clearly remember that he had the ball, he had details about the ball. In addition, he can remember the names of the people that accompanied him to the office. He can remember being told “no” by the bus driver when he asked to get on the bus. Dr Sutton surmised that while he accepts that there was a mild traumatic brain injury, he would not say that there was no loss of consciousness nor was there significant post traumatic amnesia.

52. [256]

    Dr Sutton’s view is if the plaintiff had any loss of consciousness, it was at the most extremely transient, and he has not been provided with any evidence from the attending sports teacher or anybody else that gives him evidence that there was concrete loss of consciousness. But there is no absolute certainty that there was loss of consciousness (T158.3-36). Rather, his opinion is that the plaintiff was not rendered unconscious.

53. [257]

    I have earlier set out my findings as to the plaintiff’s, the plaintiff’s mother’s, the PE teacher, the first aid officer’s evidence and the hospital’s contemporaneous notes. They accord with Dr Sutton’s opinion. As such I prefer and accept Dr Sutton’s evidence on the basis that the plaintiff’s mother’s evidence as to the plaintiff’s unconsciousness on the trip to Pambula hospital is unreliable, and the other evidence supports this view.

54. [258]

    When asked, in terms of the extent to which the neurologists agreed that there was some traumatic brain injury, even if it were only mild or mild to moderate, could someone who suffered that injury suffer seizures as a result of that injury? (I have made a finding that it was a mild traumatic brain injury) Professor Brew answered yes.

55. [259]

    Dr Sutton disagreed and gave a more expansive explanation. It is as follows.

56. [260]

    Professor Brew disagreed with counsel for the defendant when he asked:

57. [261]

    Professor Brew answered:

58. [262]

    Dr Sutton agreed. Both experts agreed that in essence there is a large body of inconclusive literature, which I will refer to later in this judgment. Professor Brew also acknowledged that there clearly are controversies and murky areas but the online texts and references that he provided that that there is an increased risk albeit small, but it is not zero.

59. [263]

    When the neurologists were asked if it is relevant when considering whether these seizures have been caused by the head knock and taking into account that the plaintiff’s assumptions that he did not suffer from these seizures before the accident and started to suffer them after the accident, how relevant would that be in their view? Professor Brew’s opinion was that there is strong or moderately strong evidence of a causal relationship rather than a coincidental one. Whereas, it is Dr Sutton’s opinion that correlation does not equal causation. It is Dr Sutton’s opinion that one has to look at the nature and severity of the head injury and the nature and type of seizures. The type of seizures that the plaintiff describes are consistent with primary generalised seizures. There is no evidence from subsequent imaging that there was any structural brain damage (this also is all common ground). There was no evidence from EEG recordings that there was focal brain damage (this also is all common ground). So if it is proposed that the head injury resulted in a focal cerebral injury that predisposed to seizures it would be expected that those seizures be corroborated by imaging, neurophysiology and the history, and the history is not one of focal onset seizures, but rather is one of generalised seizures. Dr Sutton does not agree that these seizures have their onset in the head knock. His opinion is that on the balance of probabilities, the plaintiff suffers from is a generalised epilepsy disorder.

60. [264]

    Dr Sutton, when asked, for an explanation as to why, if you accept it's the case, he didn't have these seizures before this accident replied that it is frequent to get a dual pathology. By way of example, he said that he had just seen a similar patient presenting with primary generalised epilepsy who had an MRI, he expecting the MRI to be normal, but the patient has coincidentally turned up to have mild changes of multiple sclerosis. “Now, those mild changes of multiple sclerosis have nothing to do with the seizures”. It was Dr Sutton’s opinion the head trauma and the epilepsy are two unrelated issues (dual pathology).

61. [265]

    Professor Brew had two things to say in answer to this question. Firstly, the history given to him by the plaintiff was that he does have a vague warning prior to the seizures and that rules against a pure primary generalised epilepsy of being likely, and then, secondly, about a quarter of patients can have generalised convulsions alone. Professor Brew referred to vague local warnings but did not make any reference to them in his reports.

62. [266]

    In evidence, Professor Brew referred to an article entitled “Post Traumatic Epilepsy” by Ravindra Kumar Gar MD, C P Panayiotopoulos MD PhD. In that article, under the heading “Clinical manifestations” sub-heading “Presentation and course” at [2] it states:

63. [267]

    Professor Brew also referred to a Wolters Kluwer article entitled “Post-Traumatic seizures and epilepsy” by Randolph W Evans MD, FAAN, Steven Schachter MD https://www.uptodate.com/contents/post-traumatic-seizures-and ep, under the heading Post Traumatic Epilepsy, where he states:

64. [268]

    Both neurologists agree with what is said in this example.

65. [269]

    The final reference is cited by Dr Sutton in the New England Journal of Medicine, entitled A Population-based Study of seizures after traumatic brain injuries, by John F Annegeris PhD, W Allen Hauser MD, Sharon P Coan MS and Walter A Rocca MD MPH dated 1 January 1998 (Ex A(2), Tab 36 p 358) (“the journal”). Both neurologists agree that the journal is a prestigious peer review journal with exacting standards (T197), although Professor Brew is of the opinion that in a textbook such the one he cited, a series of experts have to write a particular chapter , then it has to be reviewed and re-reviewed carries somewhat more weight. Dr Sutton prefers the peer review journal article on the basis that science is about proposing a hypothesis, having a rigorous test of that hypothesis and then deciding on the balance of probabilities, but there is no certainty. Dr Sutton says that his judgment was based on the balance of probabilities of the evidence including data in the graph reproduced below.

66. [270]

    Dr Sutton referred to a graph, reproduced below:

67. [271]

    He explained the meaning of the graph is as follows (T196.22-41):

68. [272]

    From this journal article, it appears that the risk of post traumatic epilepsy in mild traumatic brain injury where the patient (such as the plaintiff) had not had traumatic amnesia or loss of consciousness for more than 24 hours is 1.2% above the background population. I have made a finding that the plaintiff did not suffer a loss of consciousness and if I am wrong it was certainly not for more than 24 hours. I accept and prefer the peer review evidence referred to and explained by Dr Sutton. Hence, if the plaintiff had a traumatic amnesia or a loss of consciousness of more than 24 hours, he had less than a 1.2% chance of suffering post traumatic epilepsy.

69. [273]

    The neurologists disagree as to whether the plaintiff has post traumatic epilepsy or primary generalised seizure disorder (a disorder with no identifiable cause) Professor Brew disagrees with the opinions of Dr Sutton and Dr Zentner of the specialist epilepsy service at Prince of Wales hospital, Dr Zentner and Dr Morton are of the opinion that the plaintiff suffered from idiopathic primary generalised epilepsy. Professor Brew’s opinion is that the plaintiff has post traumatic epilepsy rather than generalised epilepsy for the following reasons:

70. [274]

    Dr Sutton’s opinion that the plaintiff has an idiopathic primary generalised epilepsy which is probably genetic, although not proven. He agrees with the opinion of Dr Morton of the specialist epilepsy service at Prince of Wales Hospital.

71. [275]

    Earlier in this decision, I have referred to the notes of Dr Morton a neurology consulting clinician dated 3 June 2019. The plaintiff was admitted to the neurology ward, where EEG monitoring took place that recorded no seizure throughout admission. He reviewed video footage of seizures (from home recorded by the plaintiff’s partner). Dr Morton’s opinion is that it was more likely that the plaintiff has generalised epilepsy, not related to the head trauma sustained in the head collision.

72. [276]

    Dr Sutton then gave evidence:

73. [277]

    Professor Brew agreed with Dr Sutton’s last statement but made the following qualifications:

74. [278]

    Professor Brew considered that the plaintiff has generalised epilepsy, on the basis that the plaintiff mentioned to him that he has a vague warning sometimes. The nature of this warning is difficult to be precise about but the significance of such a warning that may suggests that he has focal seizures quickly becoming generalised. As stated earlier, there is no reference to the plaintiff experiencing a vague warning that may suggest he has focal seizures in his report. In the absence of evidence as to the plaintiff suffering focal warnings, I prefer Dr Sutton’s view that the plaintiff suffers from a primary generalised seizure disorder. Dr Sutton’s opinion accords with Drs Zentner and Morton. This means that while the plaintiff did suffer a mild traumatic brain injury, it did not cause him to develop post traumatic epilepsy.

75. [279]

    Dr Sutton is of the opinion that the plaintiff’s head trauma was not relevant in the genesis of his seizure disorder. Professor Brew considers that the head injury the plaintiff sustained in the head knock predisposed him to his epilepsy.

76. [280]

    Dr Sutton said that the contemporary evidence suggests there was no loss of consciousness at the school or subsequently at the beach. As previously stated, Dr Sutton considers that it is inconsistent that he could have a delayed amnesia. It was unclear what went on during this period but there is nothing documented in the Pambula hospital notes such as tongue biting or incontinence to suggest there was a seizure. For these reasons, Dr Sutton did not accept that there was a delayed amnesia.

77. [281]

    Consistent with my earlier findings, I find that the head knock did not cause the plaintiff to suffer post traumatic epilepsy.

78. [282]

    If there was negligence, it was not an occurrence of the harm nor was it appropriate for the scope of negligence to a person’s liability to extend to the plaintiff suffering epilepsy. The plaintiff’s claim in relation to causation under s 5D fails.

79. [283]

    The plaintiff’s claim in relation to liability under ss 5B, 5C and 5D of the Civil Liability Act fails. Judgment is to be entered in favour of the defendant.

80. [284]

    In the event that that I am wrong and the defendant is found to be negligent, I will now consider the plaintiff’s claim for damages.

Damages

1. [285]

   Neuropsychologists, Professor Richard Merrick and Associate Professor Jennifer Batchelor provided an expert neuropsychologists conclave report dated 2 February 2021.

2. [286]

   Both Associate Professor Batchelor and Professor Mattick agree that the plaintiff does not suffer any disorder under DSM-5.

3. [287]

   When asked what treatment and/or advice is available for the management of the plaintiff's psychiatric or psychological disorder(s), Professor Mattick is of the view that the cause of the plaintiff's anxiety and unhappiness is his epilepsy and also the plaintiff's repeated loss of employment and the loss of his licence. Professor Mattick says that as the plaintiff does not suffer a psychological disorder, no treatment is warranted, but some counselling of 4 to 6 sessions may help him to adjust to the loss of his licence. Associate Professor Batchelor takes a view that treatment and domestic assistance are not matter for comment by a neuropsychologist.

4. [288]

   Professor Mattick is of the view that there is no evidence that the plaintiff has not been able to care for himself in the past because of his unhappiness and anxiety. There is also no evidence that the plaintiff cannot do the basic activities of daily living and that his cannot carry out domestic and other similar activities.

5. [289]

   As to future care, Professor Mattick's view is that it is clear that the plaintiff can carry out the basic ADLs [aspects of daily living]. He can shower, dress himself and carry out all the normal activities of daily living. He can prepare and cook meals. However, if he has a headache, he may not be bothered to do some domestic tasks, but he can do them. The plaintiff told Professor Mattick that he can do light and heavy housework and house maintenance. Professor Mattick said that there might be a caveat that in an acute seizure period, the plaintiff could be acutely affected but there is no long term permanent impairment and the plaintiff can care for himself.

6. [290]

   Associate Professor Batchelor is of the opinion that the plaintiff does continue to suffer cognitive impairment. Professor Mattick agrees with this but adds that there is evidence of acute impairment associated with seizures and postictal recovery.

7. [291]

   It is Associate Professor Batchelor's opinion that it remains possible that the plaintiff suffers from ongoing impairment of recent memory for visual material. Professor Mattick accepts that in the acute period after a seizure, the plaintiff could, for a brief number of days, suffer from memory problems.

8. [292]

   Associate Professor Batchelor says that in the absence of any history of brain injury it is very possible that the plaintiff's memory disorder is a result of the accident. She does not accord with the opinions of Dr Sutton, Morton and Zentner whose opinion I accept and prefer for the reasons given earlier in this decision. She does not agree that the plaintiff's memory problem is only evidence in the state following a seizure and that the neuropsychological data is such that it remains possible that the plaintiff has an ongoing impairment of recent memory. Professor Mattick says that the cause of the plaintiff's reported cognitive difficulties is the acute postictal period.

9. [293]

   Both neuropsychologists agree that that the plaintiff had no predisposing factors for cognitive impairment. They also agreed that the plaintiff has not received treatment for cognitive impairment. Both agree that treatment is available for the management of the plaintiff's cognitive impairment.

10. [294]

    Professor Mattick's opinion is that the plaintiff's prognosis for acute cognitive impairment post seizure is good if the seizures can be stopped by taking the appropriate medication. Associate Professor Batchelor opinion is that it is just not possible to make prognostic statements at this stage as the possibility that there is an ongoing and permanent disorder of recent memory has not been addressed and thinks that need to be examined before prognostic statements can be determined.

11. [295]

    So far as the plaintiff's ability to maintain employment is concerned, Associate Professor Batchelor's opinion is that it will be frustrating for an employer because the plaintiff's cognitive impairment will have an impact. An employer would be expected to remind and prompt the plaintiff and he would have problems with any occupation which required performing more than highly routine very structured work. She cannot be specific about occupations.

12. [296]

    In relation to the plaintiff's ability to maintain employment and the impact on his cognitive impairment, Professor Mattick's understanding is that the plaintiff has been asked to leave jobs in the past due to his seizures, not because of poor memory. Associate Professor Batchelor disagreed with his opinion. She explained that the plaintiff left earlier jobs for a variety of reasons, such as as inadequate pay. Chris Steiner of Mitre 10 gave evidence that the plaintiff’s employment was terminated because of his absence from work when he had seizures, not that he was unable to do the job.

13. [297]

    The plaintiff relied on three reports of Dr Patricia Jungfer dated 28 November 2018, 1 August 2019 and 16 September 2020. She was not required for cross examination. Dr Jungfer diagnosed the plaintiff as having a neurocognitive disorder after a mild head injury and an adjustment disorder with depressed mood. However, she could not exclude that a component of the adjustment disorder at the time she saw him, was not related to the knee problems that he was experiencing. The defendant accepts that the plaintiff suffers from an adjustment disorder and that she could not exclude a component of the knee injury problem he was experiencing.

14. [298]

    Dr Jungfer recommended that the plaintiff be referred for brain injury rehabilitation following formal neuropsychometric testing having approximately 6 to 10 sessions with a neuropsychologist or brain injury occupational therapist so as to put in place strategies to assist him with regards to his functioning (report 27 November 2015). This largely accords with the view of Professor Mattick. I accept that 10 sessions with a neuropsychologist or brain injury occupational therapist is reasonable and necessary.

15. [299]

    So far as work capacity is concerned, Dr Jungfer opines that the plaintiff’s work capacity is influenced predominantly by his seizure disorder. Dr Jungfer says that the seizure disorder and the neurocognitive disorder has had an adverse impact upon the plaintiff’s education, particularly in the area of his irritability and being unable to sustain relationships due to his irritability and short temperedness and due to these and his seizures he will have trouble in maintaining paid employment. (Ex A(2), Tab 27). The only independent evidence as to the plaintiff’s seizures resulting in him losing his job is that of Chris Steiner. It is fair to say that he left this job for a variety of other reasons.

16. [300]

    Upon finding out this diagnosis, the plaintiff’s mother became worried and she would miss her work days to spent time with her son. The plaintiff’s mother is worried that after the seizure’s the plaintiff forgets where he has been. The seizures normally occur while he is sleeping.

17. [301]

    The plaintiff’s mother helped him after a seizure. While the plaintiff was underage, the plaintiff’s mother would drive him to all of his medical appointments. The plaintiff is now living with his partner Jordan.

18. [302]

    The plaintiff has been prescribed on medication to help him with his seizures. However, as the plaintiff has admitted, he has not been consistent with taking his medications due to the unwanted side effects he has suffered. At this more mature stage of his life he says that he is more prepared to be compliant with prescribed medication.

19. [303]

    Jordan Parkes and the plaintiff are partners and have been residing together since 2015. They are engaged. She was an impressive witness and I accept her evidence. Very recently she and the plaintiff had their first child, a baby girl. Jordan has experienced the plaintiff having seizures and taken videos of them, which were viewed by Dr Morton. Jordan, up until the birth of their baby, worked in disability care but has had to take leave for 1–2 days after the plaintiff has had a seizure if the plaintiff’s mother was not able to look after the plaintiff. She says that the plaintiff is always asleep when he experiences seizures. After the plaintiff suffers a seizure, Jordan stays awake during the night to check on him. After a seizure, the plaintiff complains about feeling tired, sore in his muscles. For the first two days after the seizure, the plaintiff mainly stays in bed and tries to sleep to allow his body to recover. If she has to go to work the next day, the plaintiff is able to get out of bed, go the the fridge and take out some Gatorade or Powerade to drink and keep his electrolytes up. While he can heat up some food in the microwave, every time he had had a seizure, he lacerates his tongue, which makes it difficult for him to eat (T152.40; T153.34). She is concerned that since having the baby, she will not be able to take care of the plaintiff as she used to without any help (Ex G). I have no hesitation in accepting her evidence.

20. [304]

    The plaintiff has had a number of different jobs since the accident. The plaintiff left school during Year 11 and worked as an Apprentice Mechanic, spare parts interpreter and, possibly, in sales. He then worked in maintenance before working at a Chinese restaurant and at Mitre 10. When he worked at Eden fish and chips, S2 Café, Golden Ocean Chinese restaurant he says that he quit as he was not able to help them much. When in cross examined on this topic, he said that the reason he quit Golden Ocean Chinese restaurant was that they said he could work but only as a waiter. When he was employed by Conrad Ford Eden Motor Group, he quit job because they were not paying him enough.

21. [305]

    Chris Steiner is the store manager of Mitre 10 Eden, where the plaintiff used to work. Mr Steiner provided a statement and was cross examined. He deposed that at the time he gave the plaintiff the job he did not realise the plaintiff suffered from epileptic fits (Ex E, at [5]).

22. [306]

    The plaintiff was employed by Mitre 10 for about 6 months. During this period, the plaintiff had about 3 or 4 fits during that time (Ex E, at [9]). Mr Steiner deposed that the plaintiff was not a very reliable worker and had called in sick “plenty of times” (Ex E, at [8]). In cross examination Mr Steiner stated that the plaintiff would often not show up for work for one or two days (T87.27-37). When asked why he had not attended work, the plaintiff would say he had seizure (T87.42-43). I noted that this statement is at odds with Mr Steiner’s earlier statement that he did not know the plaintiff had epileptic fits.

23. [307]

    His job was to deal with customers, stock shelves, working on the registers and cutting timber (T88.31-34). He was also required to operate a forklift (Ex E, at [6]).

24. [308]

    When asked what the plaintiff’s performance was like in the period leading up to him finishing his employment, he gave evidence that the plaintiff was a little bit slow at completing tasks and he constantly check up on him (T87.12-19). Other than becoming aware that he suffered epileptic seizures the plaintiff was turning up to work on a regular basis even if he was a bit slower than others, he would not have let him go.

25. [309]

    Chris accepted the plaintiff’s resignation (Ex, at [11]). In cross examination, he stated that in the event that the plaintiff had not resigned, he would have had to let him go because of the absences (T87.49-T88.4).

26. [310]

    Currently, the plaintiff is on JobStart Centrelink benefits. He has been provided medical certificates by his GP as to why he is not able to find work.

27. [311]

    The plaintiff claims 57% of a most extreme case, which equates to $391,500. The defendant submitted that 28% of a most extreme case is appropriate.

28. [312]

    The defendant submitted that quantum, if applicable, needs to be considered in light of the plaintiff’s poor pre-injury academic performance and the likelihood of the plaintiff being seizure free if he engages with and complies with both advice and treatment. The evidence of Professor Batchelor does not support a cognitive disability. Dr Jungfer (psychiatrist) diagnosed an adjustment disorder with depressed mood caused by the seizure disorder but could not exclude a contribution from the plaintiff’s knee injury. The plaintiff’s knee injury occurred sometime after the head knock, but I find that the knee injury is not related to the head knock. He did not injure his knee at that time.

29. [313]

    The plaintiff is a young man and suffers from epilepsy now averaging one to two fits per month. In the past he had been non compliant with his medication. Now if he sleeps well and avoids drinking alcohol, he is 70% seizure free. Although Dr Sutton is more optimistic that with trialling of some alternate or newer drugs on the market he most likely could become seizure free. However, I accept that on the balance of probabilities the plaintiff will become 70% seizure free.

30. [314]

    Before the accident, the plaintiff was not an ideal student, as his senior counsel described him, he was a “lively lad”. While he says that he would go to university and study engineering and then work in the mines, this is not borne out by his academic results and his behaviour at school, even before the accident. He has not undertaken any form of study. This intention to go to university and work in the mines but for the accident can be best described as “aspirational”. However, I take into account the possibility that in the future with maturity and better treatment for his epilepsy, he may undertake some further study. The plaintiff played representative rugby league after the accident. After some time due to suffering epileptic fits, he ceased playing. Being a talented rugby league player gave him confidence and self-esteem. He is still able to work and his working life should improve in the future given the expectation that his epilepsy has a good chance of being brought under control with medication playing. Taking these matters into account, I assess the plaintiff’s non economic loss at 35% of a most extreme case ($687,000) which equates to $240,450.

31. [315]

    The parties have agreed on past out of pocket expenses in the sum of $5,000.

32. [316]

    The plaintiff claims $29,023.22 for future out of pocket expenses. The defendant submitted that the sum of $17,595.69 is appropriate. I allow $20,000 as being reasonable and necessary for future out of pocket expenses.

33. [317]

    Future medication has been agreed between the parties in the sum of $1,392.83.

34. [318]

    The parties also agree that it is reasonable and necessary that the plaintiff has consultations with a neurologist and have agreed upon the sum of $5,823.66.

35. [319]

    The plaintiff claims $90 every 2 months ($10.38 per week) for life for consultations with his general practitioner. This equates to $10,476.53.

36. [320]

    The defendant submitted that the plaintiff will require some management with his GP for life and that an allowance should be made, but there is no evidence to support the frequency claimed or the cost.

37. [321]

    An allowance of 2 general practitioner visits per annum at $40 per visit (to cover any gap above the Medicare schedule) is reasonable. $1.54 per week x 1009.4 equates to $1,554.

38. [322]

    It is my view, that the plaintiff will need to regularly attend his GP to obtain prescriptions for his medications for epilepsy. On this basis, I would allow a consultation with the plaintiff’s GP once every three months. The parties are to calculate this amount.

39. [323]

    The plaintiff claims $160 per consultation for neuropsychologist consultations totalling $1,600.

40. [324]

    The defendant makes no allowance for neuropsychologist consultations as the report of Dr Jungfer (Ex A(1), Tab 21) refer to neuropsychological treatment for brain injury, because the joint report of the neuropsychologists does not establish that the plaintiff suffered a neuropsychological injury.

41. [325]

    Consultations have been recommended by the neuropsychologist, Professor Mattick for 4 to 6 sessions at $160, that totals $960. I allow this amount to help the plaintiff with the loss of his license.

Future care

1. [326]

   On 5 February 2021, Kelly Walcot and Susan Borthwick held a telephone conclave.

2. [327]

   Both therapists agree that the plaintiff will require domestic assistance in the future in the form of a home handyman or yard assistant, but not specifically for domestic assistance. The neurologist do not think that the plaintiff requires domestic assistance for the past or future.

3. [328]

   Ms Walcot says that if the neurological conclave suggests that the plaintiff continues to require 24 hour monitoring post seizure periods, then she would recommend 4 hours per week for home care on the assumption of a monthly post monitory seizure periods. The neurologists did not say that 24 hour monitoring was not required, then she would recommend 3 hours per month.

4. [329]

   Ms Borthwick recommends that the plaintiff follow the advice provided for seizure prevention through behavioural change and possibly see a psychologist to assist with this, and with development of a seizure response plan. Ms Borthwick says that the Epi Assist will ensure that should the plaintiff not be able to follow through himself, then someone will be altered who can. She says that the plaintiff should also review his lifestyle choices generally to ensure he can remain independent and safe at home and at work in the future. She basis this information on the fact that the plaintiff’s epilepsy is not severe, is not occurring frequently nor is it greatly variable in his seizure response.

5. [330]

   Her evidence is that 20% of people with epilepsy live alone and with the support of groups such as the Epilepsy Foundation and his treating doctor, the plaintiff should be able to live independently.

6. [331]

   The therapists agree that:

   1. (1)

      the plaintiff would benefit from using information that is readily available from medical professionals or other sources of online information to better manage his seizures.

   2. (2)

      while the plaintiff can drive, he should be provided with 8 taxi vouchers per annum for those occasions when during the postictal phase he may need to consult a doctor, because driving during this phase is not recommended. They both agree that the plaintiff will require equipment such as an Epi Assist monitor for the remainder of his life.

   3. (3)

      the plaintiff requires installation of $250, plus occupational therapy consultation at $181 per hour including GST, to ensure adequate placement and that appropriate items are purchased shower and 1 seat at a cost of $150.

   4. (4)

      mowers of any sort are not required as mowing the lawn is not an activity that is required or recommended to be undertaken only in the postictal period.

7. [332]

   The plaintiff agrees that no allowance should be made for past domestic care as the plaintiff does not reach the relevant threshold.

8. [333]

   The plaintiff submitted that the plaintiff requirement for future care, although ongoing, correlates with his seizures, which makes quantification complicated. As a result, the plaintiff claims future care in the form of a buffer in the sum of $75,000.

9. [334]

   The defendant has made no allowance for future care on the basis that the type of care likely to be provided to the plaintiff amounts to preparing for and checking on him during the postictal period is unlikely to be provided to him commercially and therefore would not pass the threshold for gratuitous care.

10. [335]

    Both neurologists agree that up until February 2019, the plaintiff had received treatment with three anti-epileptic drugs - Epilim, Tegretol and Lamictal, and he had complained of side effects from medication and that there are a number of other anti-epileptic drugs that are potentially available for treatment. If the plaintiff is compliant with the medication that is tolerated, avoids sleep deprivation and excess alcohol then he would have at least a 70% chance of remaining seizure free. Professor Brew added that the plaintiff has experienced, in his eyes, intolerable side effects from three anti-epileptic drugs. The appropriate management then consists of trying to find anti-epileptic medication that he can tolerate. This should be accompanied by full education for the plaintiff in relation to the dangers of untreated seizures.

11. [336]

    From the medical records, the plaintiff when he was a young man, did not take any medication for epilepsy. As previously stated, it is my view that now the plaintiff is of more mature years and if he is prepared to make lifestyle changes including getting enough hours of sleep and not drinking alcohol, he will avoid triggers that make him suffer epileptic seizures. He also gave evidence that he will be compliant with taking prescribed medications if the side effects are not great but tolerable.

12. [337]

    The occupational therapists to not think that the plaintiff requires domestic assistance in the future. Both Professor Brew and Dr Sutton agree that the effect of the condition on the plaintiff’s ability to care for himself in the past has essentially revolved around the same issues that affect anyone with significant epilepsy. He has the ability to care for himself, there is no impact on personal care, that is toileting and showering and so forth. However, there may be some impact on his ability to look after himself given the frequency of the seizures and the preferred setting in which he has access to another person should he have a seizure, then that person can attend to him.

13. [338]

    Dr Sutton added that it would not impact upon the plaintiff’s ability to care for himself in activities of daily living. It would impact on him in terms of caring for himself, in that as a result of his seizures, he is unable to drive, which may affect things such as shopping. However, he is clearly capable of caring for himself and he has had several jobs since leaving school.

14. [339]

    I accept the occupational therapists’ opinions where they agree that he needs 8 taxis vouchers per annum for those occasions when during the postictal phase the plaintiff may need to consult a doctor, because driving during this phase is not recommended. In the circumstances I do not make an allowance for future care. The neurologists agree that nearly all of his seizures take place at night when his partner is at home. He is able to get gatorade out of the fridge and heat up at meal. He usually sleeps after a seizure. He has the ability to care for himself, there is no impact on personal care, that is toileting and showering and so forth. I allow the 8 vouchers at $60 each. This totals $480 per annum.

15. [340]

    I accept that the plaintiff requires installation of $250, plus occupational therapy consultation at $181 per hour including GST, to ensure adequate placement and that appropriate items are purchased shower and 1 seat at a cost of $150.

16. [341]

    The plaintiff claims the costs of 2 grab rails (show and toilet) at a cost of $500 plus installation at $250, plus 1 shower seat at $150. This equates to $900. The defendant has agreed to this amount. I allow $900 for future equipment as I regard it as reasonable and necessary.

17. [342]

    The plaintiff claims 5 hours of occupational therapy at $181 per hour. This equates to $905. The defendant makes no allowance for occupational therapy. The occupational therapists recommend one consolation.

18. [343]

    It is my view the recommendation of the occupational therapist may assist the plaintiff if and when he has a seizure. I allow 5 hours of occupational therapy for 5 x 181 per hour. This equates to $905.

19. [344]

    The parties agree to the allowance for an Epi-Assist seizure monitor at a cost of $1,718 and a battery renewal at $320 per annum for life. This equates to $6,207.20.

20. [345]

    Section 12 of the Civil Liability Act provides for damages for past or future economic loss. It reads:

21. [346]

    In September 2014 when the plaintiff was at school he worked after school and during the school holidays. The plaintiff left school in September 2014 and worked sporadically at various employments

22. [347]

    The plaintiff resigned from Conrad Ford because he thought he was not paid enough (T.58.16-17) and from the Chinese Restaurant because he would have remained as a waiter (T.23.33-20).

23. [348]

    The plaintiff has worked in various jobs including as an apprentice motor vehicle mechanic and spare parts interpreter at Eden Motors, a waiter at Chinese restaurant and at finally at Mitre 10. There is no indication as to how much the plaintiff earned in these occupations.

24. [349]

    The only tax return that is available is for the is for the year 2018. The plaintiff earned $457 per week from John Michelin & Son Pty Ltd and Upkeep Home Maintenance.

25. [350]

    As from 6 March 2019, since his employment at Mitre 10 was terminated (Ex 9) he has remained unemployed.

26. [351]

    While the plaintiff initially relied upon relied upon a report of Furzer Crestani, forensic accountants dated 5 March 2019 to calculate his economic loss, he later recalibrated his claim for both past and future economic loss.

27. [352]

    From 9 September 2014 to 5 March 2019, the plaintiff claims economic loss to reflect his absenteeism and inability to maintain ongoing employment at each employment due to his injury. The claim is made in the form of a buffer/cushion in the sum of $75,000.

28. [353]

    In addition to the $75,000, a further claim is made from 6 March 2019 to date on the basis of one of the following scenarios to be accepted by this Court.

29. [354]

    Scenario 1 as a Chef at a rate of $1,044 gross/$841.86 net per week (90% of Male Chef AWEC) for 128 weeks totalling $107,758.08.

30. [355]

    Scenario 2 at average weekly earnings of $1,530.80 gross /$1,165.20 net per week for 128 weeks. The net figure is greater than the gross figure, so this calculation will be correct.

31. [356]

    Scenario 3 as a Trades Centre worker at Mitre 10 at $684.27 net per week for 128 weeks totalling $87,577.60.

32. [357]

    The defendant does not agree with a buffer for past economic loss on the basis that there is no significant loss of time between casual employment (T58.25-35).

33. [358]

    The plaintiff has not worked since resigning from Mitre 10 in March 2019. The defendant submitted that he was capable of performing the role and has a number of transferable skills.

34. [359]

    The expert evidence does not support significant incapacity. The knee injury appears to have had some influence on the plaintiff’s decision to leave school.

35. [360]

    The school records suggest that the plaintiff was at best an average student with some disciplinary issues.

36. [361]

    The defendant does not agree to the assumptions of likely earning contained in scenarios (1) and (2).

37. [362]

    The defendant agrees to Scenario 3 as the plaintiff being employed as a Trades Centre worker at Mitre 10 at $684.27 net per week for 128 weeks totalling $87,577.60.

38. [363]

    It is most likely that if the plaintiff had not suffered epilepsy while working at Mitre 10, he would still have been in that employment today. He should be fully compensated for his loss of employment from when he was terminated from Mitre 10 to today. The sum of $87,577.60 reflects those lost wages and I allow that amount. I do not allow an additional amount as a buffer.

39. [364]

    The parties are to agree upon this amount.

40. [365]

    The parties agree to past superannuation to be calculated at 11% of the total amount of the past economic loss. This equates to $9,633.54.

41. [366]

    Claims for future economic loss are governed by s 13 of the Civil Liability Act. It reads:

42. [367]

    The plaintiff’s claim for future economic loss is made on the basis of one of the following past economic loss scenarios to retirement age of 70 (46 years/956.1). The defendant submitted that the period of future economic los as claimed by plaintiff should be up until he reaches the retirement age of 67 years. The plaintiff claims future economic loss as on the same 3 scenarios as past economic loss, plus scenario 4, which is an amount for a buffer.

43. [368]

    While the plaintiff makes an alternate claim that he will work past the current retirement age to 70 years of age, without any evidence in support of this proposition, it is my view that the plaintiff will retire at the current retirement age of 67 years. The period is not until the age of 67 (43 years – 9.38.2 at 5%). The plaintiff’ future economic loss should be calculated to the retirement age of 67.

44. [369]

    The defendant makes no allowance for scenario 1.

45. [370]

    The defendant makes no allowance for scenario 2.

46. [371]

    The defendant does not agree with scenario 3 but if an award is made then it should be discounted due to the evidence of the plaintiff’s willingness to comply with treatment and the probability of being able to find a medication to manage his seizures.

47. [372]

    The defendant agrees that the best approach to scenario 4 is a buffer based on the plaintiff’s willingness to comply with treatment and the probability of being able to find medication to manage his seizures. The defendant suggests a buffer of $150,000 to $200,000.

48. [373]

    The neuropsychologists agree that the plaintiff does not suffer from any psychiatric or psychological disability under DSM V. After the head knock, the plaintiff has been unable to hold down regular employment.

49. [374]

    As far as future employment is concerned, the neurologists agree that a history of seizures impacts on the availability of employment in a significant way in the future. Certain employments that would involve flying, driving heavy goods vehicles, working in dangerous situations would be precluded. The plaintiff has had several jobs since leaving school. He undertook an automotive apprenticeship and has done shop work. There are employments for which he is suitable. He has not obtained any history of any employment that he wants to pursue that is precluded due to epilepsy. Professor Brew added that he considered occupations that involve heavy machinery would also be difficult in someone who has seizures. I agree with Professor Brew’s opinion. It seems most likely that the plaintiff’s epilepsy will be more under control in the future. Both neurologists agreed in conclave that there is a 70% chance of the plaintiff being seizure free if he follows advice and an effective and tolerable medication regime is established. Professor Brew agreed that if the plaintiff was prepared to accept some side effects then there is a 70% chance of him being seizure free (T210.1-5).

50. [375]

    It is Dr Sutton’s optimistic opinion that in the future the plaintiff may become seizure free and be able to obtain a drivers license.

51. [376]

    The defendant submitted that the plaintiff’s claim for future economic loss is also contingent on his engagement and compliance with treatment. The expert evidence does not support significant incapacity. At worst there may be periods of incapacity depending on compliance with medical advice and the effectiveness of treatment.

52. [377]

    The plaintiff does not agree that a buffer is the correct approach. The defendant submitted that a buffer is the best approach. Taking into account the following factors that the plaintiff is in a stable relationship and is now willing to comply with treatment, the probability of him being able to find a successful prescribed medication to make him 70% seizure free, he may be able to obtain a drivers licence, post accident he has been able to hold down regular employment and he is a relatively young man, I assess the appropriate sum for a buffer as $200,000.

53. [378]

    The parties are to calculate the amounts referred to in the schedule and check my calculations. I have included the schedule at the end of this judgment in the event that I am wrong on the issue of liability and causation.

Result

1. [379]

   I enter judgment in favour of the defendant.

Costs

1. [380]

   Costs are discretionary. Normally costs follow the event. The plaintiff has been unsuccessful. The plaintiff is to pay the defendant’s costs as agreed and assessed.

   1. (1)

      I enter judgment for the defendant

   2. (2)

      The plaintiff is to pay the defendant’s costs