District Court New South Wales

• Medium Neutral Citation: Sticker v NSW Department of Education & Communities [2014] NSWDC 37
• Hearing dates: 25, 26, 27 & 28 February 2014 (Last submission received 10 March 2014)
• Decision date: 17 April 2014
• Jurisdiction: Civil
• Before: Levy SC DCJ

Decision

1.Verdict and judgment for the plaintiff in the sum of $689,294;

2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

• Catchwords: TORTS - workplace injury - primary school teacher sustained serious back injury in course of seeking to discipline misbehaving 8 year old traumatised refugee child with long history of behavioural problems including violence - whether employer negligent - whether contributory negligence of plaintiff; DAMAGES - assessment of claimed heads of damages
• Legislation Cited: Civil Liability Act 2002, s 3B; Court Suppression and Non-Publication Orders Act 2010, s 8; Crown Proceedings Act 1988, s 5; Evidence Act 1995, s 60, s 80; Workers' Compensation Act 1987, s 151L; Workplace Injury Management and; Workers Compensation Act 1998
• Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Strong v Woolworths Ltd [2012] HCA 5; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485; Wyong Shire Council v Shirt: [1980] HCA 12; (1980) 146 CLR 40
• Category: Principal judgment
• Parties: Jeanette Sticker (Plaintiff); NSW Department of Education & Communities (Defendant)
• Representation: Ms E Welsh (Plaintiff); Mr J Catsanos (Defendant); Federation Law (Plaintiff); Berry Buddle Wilkins (Defendant)
• File Number(s): 2012/356133
• Publication restriction: Suppression order in respect of name of school pupil referred to in the evidence as "X". This order extends to the mother of "X".

Judgment

Table of Contents

Nature of case	[1] - [4]
Non-publication order	[5]
Facts	[6] - [10]
Issues	[11]
Credit and reliability of testimony	[12] - [17]
Plaintiff's background	[18] - [24]
Background of student "X"	[25] - [27]
Relevant documents	[28] - [34]
Expert opinions	[35] - [46]
Medical assessments following injury	[47] - [69]
Disabilities	[70] - [74]
Mitigation	[75]
Issue 1 - Negligence	[76] - [97]
Issue 2 - Alleged contributory negligence	[98] - [111]
Issue 3 - Assessment of damages	[112] - [144]
Past economic loss	[113] - [117]
Past loss of superannuation	[118]
Future economic loss	[119] - [141]
Future loss of superannuation	[142]
Fox v Wood	[143]
Summary of damages assessment	[144]
Disposition	[145]
Costs	[146]
Orders	[147]

Nature of the case

1 On 18 March 2009, the plaintiff was injured in the course of her employment with the defendant, the NSW Department of Education & Communities. At that time she was a primary school teacher and sometime Assistant Principal at the Bert Oldfield Public School at Seven Hills, NSW.

2 The plaintiff was injured as a result of a deliberate violent act carried out by an 8 year old primary school student in her care. That boy had behavioural issues that included a history of violent behaviour towards fellow students and staff members at the school.

3 The plaintiff claims her injuries occurred as a result of the negligence of her employer and she brings these proceedings claiming damages for negligence pursuant to s 5 of the Crown Proceedings Act 1988.

4 The proceedings are governed by the limiting provisions of the Workers' Compensation Act 1987, and the Workplace Injury Management and Workers Compensation Act 1998.

Non-publication order

5 The name of the school student involved in the incident giving rise to the claim was ordered to be suppressed pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 on the ground that it is in the public interest that such an order be made in the case of a minor. In the oral evidence and in these reasons, that student has been assigned the litigation pseudonym "X".

Facts

6 On the day of her injury, the plaintiff was called to the school playground to intervene in a playground altercation in which a Year 2 student was behaving aggressively including by using a stick to assault other students.

7 To the knowledge of the defendant, that student, then aged 8 years, who was a refugee from Sudan, had been traumatised before his enrolment in the school, and he had a history of severe behavioural problems that had previously been extensively noted in school documents, and which had been the subject of attempts at remediation and disciplinary action by the school authorities. Student "X" had a significant history of displaying aggression and violence towards others.

8 When the plaintiff arrived at the scene of the altercation in the playground, she disengaged "X" from further aggressive behaviour and she took the stick away from him. She then led him gently by the hand to the office of the school Principal for disciplinary purposes in accordance with applicable school procedures.

9 On the way to the Principal's office, which was located off a corridor in the administration building of the school, unexpectedly for the plaintiff, "X" propped and braced himself in a doorway in the corridor with his free hand and with his feet, and he then violently pulled the plaintiff backwards with some force.

10 This caused the plaintiff to land on the floor awkwardly. In those circumstances she sustained a serious twisting injury to her lower back and to her right hip. The plaintiff experienced immediate pain in her lower back. She was ultimately diagnosed as having sustained a large central lumbar disc protrusion at the level L3/4. That injury ultimately required surgical decompression, but there were complications from that procedure, and this has had an ongoing deleterious effect on the plaintiff, including on her earning capacity.

Issues

11 The following issues arose for determination in these proceedings:

Issue 1 - Whether the defendant breached the duty of care owed to the plaintiff, and if so, whether such breach caused the plaintiff's injury;

Issue 2 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent;

Issue 3 - The assessment of the plaintiff's entitlement to damages.

Credit and reliability of testimony

12 In the case for the plaintiff, oral evidence was given by the plaintiff, (T13 - T80) and Ms Lynette Jacobs (T82 - T88), a current work colleague of the plaintiff who works closely with the plaintiff on a regular basis. She gave some evidence of her observations of the apparent fluctuating difficulties the plaintiff was experiencing in her current employment. I found the evidence of the plaintiff and Ms Jacobs to be entirely credible.

13 In the case of the defendant, oral evidence was given by the Principal of the school, Ms Elizabeth Gledhill (T92 - T146). She became the Principal of the school in January 2009. Her evidence was uncontroversial. The school had about 200 students at the time, about 20 per cent of whom were from refugee backgrounds. She confirmed the files concerning the behavioural problems exhibited by "X" were sparse: T94.40.

14 She described the school as having a number of children with behavioural problems. Her notes, forms and correspondence feature in the documentary evidence. I gained the impression that Ms Gledhill was somewhat guarded and defensive in giving her evidence as she was the person who had suspended "X" shortly before the plaintiff's injury, and had then allowed him back into the school without parental input.

15 Ms Gledhill explained that when she took over as Principal she did not review the counselling files relating to problematic students because those files were confidential and contained information not in the student files available to the Principal: T130.30.

16 When Ms Gledhill was taken through some of the relevant events relating to "X" during early 2009, she agreed that if behaviour had not improved after a short suspension, a further suspension would have been indicated, even if it was within a very short time after the first suspension, if the behaviour of a child warranted that course: T133.37. She stated that behavioural issues were monitored on a daily basis if required, in order to determine the options to manage problems, because of the need to maintain a safe environment in the school: T134.26 - T134.47.

17 The concurrent evidence given by the expert educationalists, Dr Keith Tronc and Dr Claire Spicer (T155 - T186) will be considered separately.

Plaintiff's background

18 At the time of her injury the plaintiff was aged 52 years. She is presently aged 55 years. She has three adult children. She has been a primary school teacher since 1979. In 2001, she was promoted to the position of Assistant Principal at the school where the incident in question occurred. She subsequently acted in that capacity from time to time as and when required. This included during a period between July 2008 to December 2008 when the Principal was absent.

19 Before her injury, the plaintiff had been assessed for eligibility for promotion to the position of Principal: Exhibit "Q". At the time of her injury she was eligible for promotion when a position and her name was on a suitability list awaiting the availability of a position. I consider that it was only a matter of time before this occurred in the relatively short term as her suitability for the position had been proven, and her prospects for promotion were excellent.

20 Before the incident in question the plaintiff enjoyed good health and had no impairment if her ability to fully exercise her earning capacity either in the employ of the defendant or elsewhere, whether in the profession of teaching or otherwise.

21 On 22 February 2011, as a result of her injuries, the plaintiff became unemployed as she could not fulfil her pre-injury duties due to her residual physical impairments that relate to the incident in question.

22 She has subsequently obtained employment in the private sector as an educational trainer but this work is for significantly reduced hours due to her disabilities, and this involves significantly less remuneration compared to her previous full-time employment with the defendant.

23 The plaintiff has been single since the middle of 2012. She needs to work to support herself. She finds it difficult to do so due to her ongoing disabilities arising from the incident in question. In her evidence she stated that she sees herself as only being able to persist with her employment for a further 2 or 3 years due to her injury-related impairments.

24 These matters will be assessed in the course of my findings relating to damages. In the meantime it is sufficient to record my assessment that the plaintiff was a credible witness. I have accepted her evidence in its entirety. She gave her evidence in an understated manner that belied her underlying problems, which included significant physical discomfort that was plainly evident.

Background of student "X"

25 In 2007, "X" was enrolled in the Kindergarten class at the school. He had two siblings at the school who were obtaining special assistance. His mother is single and she works. "X" had progressed through to Year 2 at the school, which was when the incident in question occurred.

26 Well before that incident, the school authorities were well aware that "X" was exhibiting severe behavioural problems that constituted a threat to other students and to staff members at the school. Over time, these problems were the subject of reports and disciplinary action against "X before the incident in question.

27 It was well understood by the school authorities that "X" was exhibiting behavioural problems ascribed to his experiences as a refugee from Sudan. The school had a relatively high population of pupils who were refugees of African origin. In that context, the behavioural problems exhibited by "X' were not seen by the school as being uncommon. The school had available procedures to assist such students to adjust to the school environment. Those matters are outlined in the paragraphs that follow.

Relevant documents

28 The defendant had procedures for dealing with disciplinary problems of the kind in question, including the expulsion of students in appropriate cases: Exhibit "3".

29 There were also procedures for providing support and remedial assistance to students who required such assistance, as well as procedures for the issuing of reports on the outcomes of such interventions: Exhibit "E".

30 There were records that were required to be kept to document any professional visits to the school by counsellors, assessors and the like. In the case of this school, not all of those records were available, and those that were produced on subpoena, were not accurately annotated: Exhibit "M".

31 The following documents of significance were tendered:

(1) The Semester 1 Kindergarten report in 2007 identified "X' as having behavioural problems that raised safety issues of concern for himself and for others at the school. At that time attention was drawn to his need for a structured routine aimed at improving his behaviour: Exhibit "6";

(2) On 31 January 2008, an incident report was completed by the school that reported an injury to "X" in circumstances where he was misbehaving in a number of inappropriate ways described in the documents relating to that incident, where it was particularly noted that he had been kicking and hitting other students: Exhibit "L";

(3) In early 2008, the problems "X" was experiencing were undoubtedly exacerbated by his difficulty in picking up the language and difficulty in paying attention. Those latter problems were reported by his support teacher in Semester 1 in 2008: Exhibit "7";

(4) In Semester 1 in 2008, "X" was receiving intensive assistance from an ESL teacher in the setting of a small group. That teacher reported that "X" had poor social skills and was getting in trouble in the playground, was often involved in hitting other children and spoiling their games, and engaging in attention seeking behaviour. Listening problems were also reported: Exhibit "K";

(5) On 12 May 2008, a student behaviour analysis and risk assessment of "X" was undertaken by the school. This identified high risk issues requiring immediate prioritisation in the context of a possible need for first aid more than once per day, and amongst other things, frustration issues, stress and anxiety, avoidance and escape issues. There were variable commonplace triggering events for these problems, occurring anytime, in situations in classrooms, in the playground and in transit, and against a background of a number of contributing factors, including residual refugee camp issues: Exhibit "C";

(6) On 16 June 2008, the school Principal signed off on a form to the defendant requesting access for additional student services support for "X". A number of fields were completed in that form, seeking assistance in the form of New Arrivals ESL, ESL Targeted Support, School Counsellor, Learning Assistance, STARTTS, reading, writing and Behaviour Support. It was noted "X" was having great difficulty following playground and school rules, he did not appear to be able to control his behaviour, he seemed unaware that the had caused injury, was always tired, often ate his food before school, and had difficulty concentrating. At that stage he was already receiving 10 hours of support each week and it was noted that he required 1-1 teacher support and supervision to complete his work in all areas, and family counselling had occurred: Exhibit "B";

(7) In Semester 2 in 2008, the Support Teacher Report stated that "X" was still having trouble remembering how to play nicely in the playground, and there was mention of him starting to recognise when he was losing control: Exhibit "K";

(8) On 26 February 2009, a meeting was held with Ms Gledhill, the principal, a STARRTS counsellor, and three other teachers to discuss the problems concerning "X". This was "After lots of assessments to gauge the correct protocol". The meeting was minuted, and it seemed that the STARRTS counsellor had identified the fact that she did not know how to proceed, and was wanting teacher feedback as the mother of "X" was often not at home. It was noted that the brother and the sister of "X" were also being treated in a remedial programme. It was noted that in the opinion of the STARRTS worker, "X" was thought to have ADD. Against that background, teachers were expressing concerns that the behaviour of "X' was worsening and that he was "an extreme danger in the classroom - he intentionally tries to hurt others". Primary and secondary trauma were identified causative factors dating back to refugee camp origins, and there was difficulty in engaging the mother of "X" on these issues. The assessment of the meeting was that "X" was "close to suspension and other children in the class are very frightened of him" and that the school did "not have the resources to have him at the school: Exhibit "1";

(9) On the following day, 27 February 2009, a handwritten minute recorded that "X", along with another named pupil, was engaged in an act of playground violence comprising hitting peers, especially one other pupil, with a rubbish bin. It was also noted that "X" was "out of self-control - throwing pencils at others" and that the other antagonist in the reported incident was copying "X" in "targeting & attacking peers/staff". There is a reference to "X" needing to be physically restrained, although he was quiet "with physical 1 on 1". There were other references to disruptive and physically intimidating playground behaviour, bullying smaller children, and even when restrained, he "will still yell/scream", amongst other infractions: Exhibit "F";

(10) On 27 February 2009, a file note was made recording the fact that "X" was suspended for 4 days from that date on several counts, including behaviour and escape issues. The note recorded a concern that the mother of "X" may not understand that he is unable to control his behaviours. The need for a medical consultation was raised with the mother of "X" who apparently understood the need to convey to a doctor the concerns the school had about the inattention issues experienced by "X": Exhibit "4";

(11) On 27 February 2009, the letter from the school to the mother of "X" informing her of her son's suspension stated the reasons for this was on account of his "aggressive behaviour including hostile behaviour and verbal abuse ... directed repeatedly to other students and members of staff": Exhibit "2";

(12) On 6 March 2009, a minute was prepared following a "Return from Suspension Meeting" relating to "X". Those present included the Principal, Ms Gledhill, the School Counsellor, and the class teacher. Contrary to expectations, the mother of "X" was notably absent from the meeting. Her presence had been expected, and it was recorded that attempts to contact her, including on a number given for emergencies, had been fruitless. It was noted that "there would be a recommendation that ["X"] see a paediatrician ... to gather more background information ...": Exhibit "G";

(13) Notwithstanding the absence of the mother, "X" was readmitted to the school;

(14) On 6 March 2009, the school authorities prepared a "Risk Management Plan Proforma: Student Behaviour". Amongst other things, that document assessed "X" to be at high risk of absconding, kicking and hitting. It noted there was a risk of injury to staff in terms of physical violence, harassment and unpredictable behaviours, both in the classroom and in the playground, with a variety of commonplace and otherwise unremarkable triggers. The assessment also noted that a number of elimination or control measures were required to be applied on a daily basis to manage these problems: Exhibit "5";

(15) On 11 March 2009, a handwritten minute was prepared noting that "X" was exhibiting a variety of misbehaviours, mimicking at teachers, not listening to teachers, running away on 2 occasions, arguing with the Principal Ms Gledhill, and hitting classmates on the head with a book: Exhibit "J";

(16) On 16 March 2009, a handwritten note was prepared concerning classroom observations made of "X". It was noted he was "approximately 85 per cent off task ... deliberately being confrontational ... defying instructions ... running out of the classroom at will ... intent on disturbing the class and disrupting teachers lesson ... needed to be physically restrained ... refused point blank to co-operate". These matters were discussed with the Principal after 3pm that day: Exhibit "H";

32 It is against the above background that two days later, on 18 March 2009, the plaintiff was injured by the conduct of "X". There are several notations that post-date the injury to the plaintiff however, it is not relevant to review those for the purposes of an analysis of the liability issues calling for decision.

33 On 19 March 2009, the Principal, Ms Gledhill, completed a workers' compensation form which described the mechanism of the plaintiff's' injury as being that whilst she was escorting a child to an office area, whilst walking through a doorway, she was wrenched, thereby losing her balance and sustaining injuries: Exhibit "8", page 257.

34 The plaintiff's account of the incident as recorded on the workers' compensation claim form was that she was "leading a child by the hand through a door. Child braced and pulled me back - landing awkwardly with right hip pushed out": Exhibit "8", page 154.

Expert opinions

35 The parties each engaged expert educational consultants as witnesses to comment upon the liability issues that related to their respective liability positions in the litigation.

36 The plaintiff retained Dr Keith Tronc, who prepared a report dated 24 May 2013. The defendant retained Dr Clair Spicer, whose report was dated 16 September 2013.

37 Following a direction made at the commencement of the hearing, the experts met and prepared a joint report dated 27 February 2014, which went beyond their earlier reports and reached common ground on a number of matters, thus more conveniently isolating the matters that still remained the subject of disagreement: Exhibit "N".

38 That process was aided by the experts inspecting the exhibits tendered in the proceedings, and which had not been previously provided to them at the time they had prepared their initial reports. The experts also drew upon their understanding of the defendant's policies, procedures and systems for the background to their respective opinions.

39 The end result of the conclave of experts was that whilst Dr Tronc saw no reason to alter the opinions he expressed in his report, Dr Spicer modified some of her previously expressed views.

40 By virtue of s 80 of the Evidence Act 1995, expert opinions are admissible on the ultimate issue. Whilst it was understandable that the parties armed themselves with opinions from the experts, and whilst the opinions were informative, and assisted in understanding the issues, essentially, the matters calling for decision in this case involved matters of fact that were not determined by expert evidence. On analysis of the evidence of the experts, I consider that their opinions involved commentaries rather than true expert opinions.

41 In this case, I do not regard any of the issues calling for decision to necessarily require a resolution of the expert opinions.

42 That said, I consider the views of Dr Tronc to be most apt when he says that the school did too little too late, given the information the school must be taken to have had at its disposal, as is evident from the exhibits in the case, and as summarised in the series of sub-paragraphs at paragraph [31] above.

43 I am reinforced in that view when it comes to an assessment of the opinion expressed by Dr Spicer on the causation issue. She would not have been expected to have an understanding of the "but for" test for causation in this case. In that sense, her comment at page 2 of the joint report to the effect that even after "X" had returned to school after a suspension, he still would have returned to school with similar issues, is not a relevant analysis.

44 In my view, the true value of the expert evidence in this case is to emphasis the obvious points, namely that the school's record keeping was incomplete and inadequate, which resulted in the Principal remaining incompletely aware of the history and the extent of the misbehaviour of "X", and that the school policies on bullying control and expulsion procedures were not adequately implemented.

45 In view of the facts set out in the chronology extracted from the exhibits at paragraph [31] above, I find myself quite unable to accept the opinion of Dr Spicer, as expressed at the conclusion of the joint report, where she stated her belief that the school was a safe working environment: Exhibit "N", page 6. For as long as "X" remained a student at the school, the opposite was true.

46 I consider Dr Spicer's comment at page 2 of the joint report, referring to the fact that "X" was getting support, to be a superficial analysis. Support was not the issue. The risks posed by the presence of "X" needed to be addressed because of his behaviour. It is that aspect of Dr Spicer's opinion which persuades me the issues in this case should be decided on fact findings, and not upon the competing views of the experts on factual matters.

Medical assessments following injury

47 The chronology of the medical assessments that followed the plaintiff's injury are set out in the paragraphs that follow.

48 On 24 February 2009, the plaintiff first consulted her general practitioner, Dr Sarah Barrand, in respect of the injuries she sustained in the incident in question.

49 On 23 March 2009, at the request of her general practitioner, the plaintiff underwent an x-ray and CT study of her lumbar spine. This revealed background spondylitic changes in that area but also a large right-sided paracentral disc protrusion at the level L4/5, which was observed to be compressing the L5 nerve root sheath.

50 On 15 April 2009, at the request of Dr Jacqueline McMaster, the plaintiff underwent a right-sided CT guided peri-radicular injection to the L5 level of her lumbar spine of what appears to have been a steroid and local anaesthetic agent.

51 On 28 April 2009, at the request of Dr McMaster, the plaintiff underwent an MRI study of her lumbar spine. This was reported to show a large right L4/5 paracentral subligamentous disc extrusion with cranial and caudal migration, and resulting in a mass effect on the right L5 nerve root in the lateral recess.

52 On 22 June 2009, Dr McMaster reviewed the plaintiff and discussed with her the risks and benefits associated with surgery to remove the right L4/5 disc fragment, which was pushing on the nerve root exit of L5.

53 On 16 July 2009, Dr McMaster undertook the neurosurgical procedure of foraminotomy aimed at decompressing the L4/5 nerve root by removing disc fragments that were causing the compression. The procedure was also described as including microdiscectomy and rhizolysis. Initially, the incorrect level was targeted, but ultimately the correct level was accessed and the desired result was achieved. The procedure was reported as resulting in no new neurological deficit.

54 On 20 July 2009, Dr McMaster reviewed the plaintiff. A further review was scheduled at 6 weeks post-surgery. In the meantime the plaintiff was advised not to engage in heavy lifting or pushing activities as well as episodes of extended driving. She was advised to have physiotherapy and not to return to work until further reviewed.

55 On 24 August 2009, Dr McMaster reviewed the plaintiff. At that time the plaintiff still had symptoms of occasional paraesthesia in her right leg and had some confidence issues concerning the use of that leg. Dr McMaster reported that the plaintiff was pain free in the right leg and had good motor function in all dermatomes in the lower limbs. Advice was given concerning part-time employment, initially for 2 days per week. Dr McMaster then discharged the plaintiff from her further care.

56 On 26 August 2010, at the request of the workers' compensation insurer, the plaintiff was assessed by Dr George Kalnins, a consultant orthopaedic surgeon. He noted the plaintiff was still having symptoms of paraesthesia and numbness in her right foot and right lateral leg area. He also noted she had persisting pain in her right buttock, some hip symptoms, and persisting weakness in her right foot and toes.

57 Dr Kalnins considered the plaintiff had permanent residual weakness and altered sensation in her right foot as a result of the injury in question. He also considered the plaintiff still had some problems with right-sided nerve root irritation and a lumbar list, so he recommended a further MRI study be undertaken. He considered those problems to be post-operative complications. He assessed the plaintiff's whole person impairment at 16 per cent according to the applicable regulatory assessment guidelines.

58 On 8 March 2011, at the request of the workers' compensation insurer, the plaintiff was re-examined by Dr Kalnins. In updating the history, he observed the plaintiff had incurred two aggravation injuries on the school playground.

59 The first, occurred on 26 August 2010, when she tripped over a child's foot, and although she was able to catch herself from falling, she experienced increased back pain and required physiotherapy and hydrotherapy before it settled.

60 The second, occurred on 7 December 2010, when a child ran into her in the playground, resulting in her twisting her spine, resulting in increased pain and weakness in her lower back.

61 Dr Kalnins has expressed the opinion that those aggravations have ceased to have any ongoing effect on the plaintiff, and that her ongoing complaints were due to the effects of her initial injury that occurred on 18 March 2011 (sic). He noted that her position at work had been terminated on 22 December 2010, resulting in a need for her to find alternative employment.

62 On 19 July 2011, at the request of her solicitor, the plaintiff was assessed by Professor Michael Fearnside, a consultant neurosurgeon. He considered the plaintiff had a reasonable result from the surgery in that there had been improvement in the back pain and sciatica, but there was residual persistent paraesthesia, sensory loss and motor weakness of the right ankle and lower leg. He placed some work restrictions on the plaintiff and advised that her employment had been a substantial contributing factor to the occurrence of the injury.

63 Significantly, Professor Fearnside diagnosed a cauda equina compression causing a permanent neurogenic bladder impairment. That problem had not been previously identified or described by any other practitioner.

64 On 12 April 2012, at the request of the workers' compensation insurer, the plaintiff underwent a physical and functional work capacity assessment by Dr Graham Hall, an occupation physician, and Ms Edina Delic, a psychologist.

65 The report of that assessment indicated that the plaintiff was unfit for her pre-injury employment but was fit for full-time employment subject to restrictions on the duties to be performed. I do not accept that opinion as I consider that the plaintiff had the more realistic insight into that issue. Those matters will be revisited in greater detail in connection with the consideration of the plaintiff's claim for loss of earning capacity.

66 On 17 January 2013, at the request of the workers' compensation insurer, the plaintiff was re-examined by Dr Kalnins. He reiterated the position in his earlier reports, He also stated that the plaintiff had sustained an L4/5 disc protrusion with evidence of persisting nerve root damage. He also stated that she had restrictions in walking, which should be limited to 30 minutes, and similarly with sitting. He noted she was in alternative employment and expressed a guarded prognosis with regard to possible relief from her permanent symptoms.

67 On 1 March 2013, at the request of her solicitor, the plaintiff was reassessed by Professor Fearnside. He identified the plaintiff as having a right L5 nerve root lesion with a foot drop and dermatomal sensory loss, without significant change since his last examination of her. He stated this condition was permanent. He cautioned against further surgery and recommended conservative treatment, including management of her ongoing problems through the services available at a comprehensive pain management clinic.

68 On 23 May 2013, at the request of her solicitor, Professor Fearnside confirmed the appropriateness of a range of restricted work duties.

69 On 18 February 2014, the plaintiff underwent a radiological procedure involving a CT guided right L3/4 epidural injection of Celestone Chondrose for treatment of her ongoing lumber symptoms.

Disabilities

70 Given my acceptance of the plaintiff's credit, and her evidence generally, in the absence of any challenge on matters of history, I propose to treat the history summarised in the medical evidence, and as summarised in the paragraphs that follow, as evidence of the plaintiff's post-injury disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

71 The plaintiff still suffers from ongoing right-sided nerve root problems of the L5 nerve root sheath. The operation she underwent had initially accessed the wrong level of her spine and the correct level was then accessed. She has been left with scaring from that procedure.

72 The plaintiff continues to have paraesthesia and numbness in her right leg laterally, and she has numbness in her right foot. She also has persisting pains in her right foot. She has persisting pain in her right buttock and in her right hip. She has persisting weakness in her right ankle, foot and toes.

73 Since the operation she has been left with right foot drop, a neurogenic bladder, and a lumbar list. The plaintiff's gait has been adversely affected, as has her sitting, standing and walking tolerance. The described normal post-operative neurological and dermatomal findings noted by Dr McMaster are difficult to reconcile with the description to the contrary noted by Professor Fearnside, but this was not explored at the trial.

74 The foregoing matters clearly have an adverse effect upon the plaintiff's earning capacity.

Mitigation

75 The plaintiff was under a duty to mitigate her damages: s 151L of the WC Act. As a consequence of her injuries the plaintiff sought and obtained appropriate treatment and she has pursued mitigatory employment. In my view, the plaintiff has complied with her obligations arising under s 151L of the WC Act. The defendant did not submit otherwise.

Issue 1 - The negligence issue

76 In this case the provisions of the Civil Liability Act 2002 do not apply to the liability analysis: s 3B(1)(f) of the CL Act. Therefore the question of whether or not the defendant was negligent is to be determined by the common law principles in a prospective analysis: Wyong Shire Council v Shirt: [1980] HCA 12; (1980) 146 CLR 40; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422.

77 The factual question of whether the negligence of the defendant was the relevant cause of the plaintiff's injury is in this case determined by looking back at the circumstances and applying the "but for" test of causation: Strong v Woolworths Ltd [2012] HCA 5.

78 There is no question as to the scope of the duty of care owed to the plaintiff in the circumstances. That duty was the non-delegable duty to take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury.

79 The plaintiff pleaded the following particulars of negligence:

(a) Placing the plaintiff in a position of peril in the circumstances;

(b) Failing to take reasonable precautions for the plaintiff's safety;

(c) Failing to devise, institute and maintain a safe system of work;

(d) Failing to make available additional staff to cope with the risk of violence posed by the student;

(e) Failing to engage support to provide funding for the provision of support staff to manage the student's behaviour.

80 On the inquiry as to whether the defendant was negligent, the first question to be asked is whether a reasonable person in the position of the defendant would have foreseen that the circumstances in which the plaintiff was required to work involved her being exposed to the risk of injury: Wyong Shire Council v Shirt, at [14].

81 In view of the matters extracted form the exhibits as outlined in paragraph [31] above, sub-paragraphs (2) to (14), the answer to that question must be in the affirmative, insofar as particulars of negligence (a) to (e) are concerned.

82 That conclusion is compelling in this case because on a prospective view, in May 2008, a high risk assessment was assigned to the behaviour of "X" at the school. At that time it was already recorded that he had been hitting and kicking other children. He was no longer a toddler. His behaviour could therefore not be seen as benign having regard to his age, as Dr Spicer seemed to suggest.

83 "X" was 7 years old at that time. His behaviour was serious enough for a risk assessment to be undertaken. Unfortunately, nothing of significance was done to address the risks that were actually identified at that time.

84 Furthermore, the filing of student records at the school appeared to be deficient so that the records were not well co-ordinated and amenable to ready review to determine whether a pattern of behaviour was emerging that required a protective response in the interests of the safety of staff and students who were exposed to the potential risk of injury from such behaviour.

85 Instead, the response to the risk assessment was to put the problem off, and seek more support for "X". That did not address his uncontrolled behaviour. At that time he was already receiving 10 hours of support each week. The suggestion that he needed 1 on 1 support should have flagged the urgent need for referral to at least a paediatrician at that stage, as the experts ultimately agreed.

86 It is clear on the evidence that because of his behaviour, the student by that time did not belong in a mainstream school. He clearly had special needs concerning the management of his behaviour and it's underlying causes. The failure to act on these issues meant exposing students and staff to unnecessary risk.

87 The Semester 2 note to the effect that "X" was starting to recognise when he was losing control should not be seen as an encouraging sign because it was an isolated note without a broader context to indicate whether there was significant improvement that meant the earlier risk assessment could be downgraded. Someone should have been monitoring his behaviour in the interest of the safety of other students, at the very least. There was no evidence of this having occurred. Instead, the problem of the behaviour of "X" was allowed to continue unchecked, and to worsen.

88 The school was floundering in how to deal with "X", as Exhibits "1" and "F" show. On 26 February 2009, nearly 3 weeks before the plaintiff was injured, "X" was seen to represent an extreme danger to others. At the age of 8 years, he was not frightened to stand up to the teachers and to defy them. This was a sentinel sign that should have been acted upon promptly without allowing days or weeks to pass whilst the problem festered and the risk of injury to others went unaddressed.

89 The response of the school lacked immediacy for such a serious problem where students and staff remained at risk of serious injury in circumstances where the slightest trigger could precipitate the behaviours in question.

90 The school was too slow to take "X" out of the mainstream school environment, as the chronology of documents events from 26 February 2009 onwards progressively demonstrates. A directed intervention was required in the interest of safety. This was not a theoretical consideration. "X" had a proven capacity and tendency to cause harm to others. Instead of being removed from the school and placed where he could be properly supervised, he was allowed to remain where he was, exposing students and teachers to the unnecessary risk of injury.

91 The circumstances were foreseeably primed for someone to be injured, potentially seriously, and in unpredictable circumstances. The response of the school was incrementally inadequate as time went on.

92 The subsidiary question then arises as to what a reasonable response to the circumstances would have been, viewing the events prospectively, and not with the benefit of hindsight: Vairy v Wyong Shire Council, at [124] - [129].

93 In my view, the magnitude of the risk of injury to staff members, not just to other pupils, was a real and significant one, and the probability of associated serious harm was not remote but very real.

94 It was clear from the evidence that the defendant had the means of protecting the plaintiff from the unnecessary risk of injury of the kind she suffered. This could simply have been by the expedient means of suspending the child from school and finding alternative arrangements for his schooling, as in fact occurred successfully after the plaintiff was injured. The immediacy of that need in February and early March 2009 was escalating. It is no answer to say that the mother of "X" was not available at relevant times. The school had access to mechanisms to address such problems.

95 The suspension or removal of "X" from the school as a protective measure was reasonable, practical, and one that was within the defendant's capability to provide, as in fact occurred after the event. There is no basis from within the evidence to infer that the cost of such an intervention was either prohibitive or unreasonable in the circumstances.

96 I therefore find that the defendant was in breach of the duty owed to the plaintiff, and was negligent in failing to carry out basic steps to protect the plaintiff from exposure to the needless risk of injury that could have been avoided by the exercise of reasonable care.

97 I also find that the plaintiff's injury was relevantly caused by the failure of the defendant to act in a timely manner to protect the staff and students at the school from the violent, aggressive and anti-social behaviour of "X" that was evident over a long period of time, during which the misbehaviour of "X" remained uncontrolled, and prone to unpredictable flare-ups that defied rational analysis, and which in fact escalated and worsened.

Issue 2 - Alleged contributory negligence

98 The defendant has pleaded a defence of contributory negligence, relying on the following particulars:

(a) Failing to take any or any proper precautions for her own safety in all the circumstances;

(b) Being inattentive;

(c) Conducting her work in a manner contrary to her induction and training.

99 In my assessment the defendant has failed to make out any aspect of that defence.

100 The arguments put forward in support of that defence were in my view based on impermissible hindsight considerations: Vairy v Wyong Shire Council.

101 The defendant argued that just as the plaintiff had in the past avoided any physical contact with "X" in order to avoid the risk of injury, she should have also done so on this occasion: Defendant's submissions, paragraphs [22] - [24].

102 In my view, that argument should not be accepted. The plaintiff had a duty to protect other children from "X'. They were frightened of him. He had hit and kicked other children in the past, and on this occasion he was hitting them with a stick, an extremely dangerous activity, which required that the other children needed to be protected.

103 In those circumstances, it was entirely reasonable for the plaintiff to take "X" gently by the hand in the expectation of calming him and to ensure that he was removed from the situation where he was assaulting other children. The situation needed to be de-escalated and the plaintiff achieved this.

104 There was also the risk that "X" might abscond. He was known to have done so in the past. That risk was something the plaintiff could not simply ignore. The results could have been disastrous if "X", an 8 year old uncontrollable boy, ran away from the school grounds and came to harm as a result. As the teacher on duty, the plaintiff was entitled to be pro-active in that regard.

105 In my view it is not open for the defendant to assert that there was no need to take the plaintiff to the administration building. It was an appropriate place for disciplinary purposes.

106 It is no answer to say there was no need to continue to hold the hand of "X". It obviously had a calming effect on him and secured his co-operation for a time. The evidence is that "X" was prone to unpredictable behaviour. That was all the more reason to take him to a secure place and to ensure he co-operated in being taken there.

107 The defendant's submission that the plaintiff should have appreciated that there were alternatives to the course she took is an opportunistic argument driven by hindsight, and it ignores the reality and the enormity of the responsibility that rested on the plaintiff with regard to the need to protect not only "X' from himself or the retaliation of other students, but to act to ensure the protection of those other students and staff members who were at risk in his presence, a matter well understood and documented by the defendant.

108 Therefore, the submission to the effect that the plaintiff must take significant responsibility for her own injury is a hollow one that lacks substance, and it should not be accepted.

109 The final matter that needs to be dispelled is the argument that the defendant touched upon but feintly, namely that because the plaintiff was the Acting Principal for a time in 2008, the responsibility for the events must somehow rest with her because something should have been done on her watch.

110 In my view that argument is a spurious one and entirely without substance because the problem was systemic. Another reason for rejecting that argument is because the problems with "X" were escalating under Ms Gledhill's watch, in February 2009. The school files were not in a state that enabled her to master the problem quickly. There is no evidence that this was a result of fault on the part of the plaintiff. Earlier steps should have been taken to remove "X" from the school and placed in a proper supportive environment, as he was source of danger to himself, other pupils and to teachers, as the events in question have aptly demonstrated. This deficiency arose because of systemic failings.

111 I find that the defendant has failed to establish contributory negligence on the part of the plaintiff, either as alleged, or at all.

Issue 3 - Assessment of damages

112 In the paragraphs that follow, I set out my assessment of the plaintiff's entitlement to damages.

Past economic loss

113 On behalf of the plaintiff it was submitted that her claim for past economic loss until the date of the hearing should be assessed in the amount of $161,989 net, this being an aggregate of the following components:

(a) an agreed amount of loss from the time of her injury until 30 June 2012 in the sum of $119,566 net;

(b) An amount representing the difference between the average net earnings the plaintiff would have derived in the period between 1 July 2012 to 30 June 2013, namely $88,200, and the plaintiff's actual net earnings in that period, namely $64,175, the claimed difference being $24,025 net;

(c) An amount representing the difference between the average net earnings the plaintiff would have derived in the between period 1 July 2013 to the commencement of the hearing on 24 February 2014, a period of 33 weeks, and the plaintiff's actual net earnings in that period, the claimed difference being $18,398 net.

114 In contrast, the defendant's revised submission was that damages for past economic loss should be assessed in the amount of $141,121.

115 The difference in the approach of the parties concerning this head of damage centred around whether her loss of earnings should be assessed on the basis upon the earnings of a School Principal as distinct from those of an Assistant School Principal.

116 Given that the plaintiff was in line for promotion and had acted in the capacity of Principal I consider that at the time of the accident her most likely circumstances, but for her injury, were that she would be working as a Principal. I therefore consider that the comparative earnings of a Principal are more reflective of her earning capacity. In those circumstances, I accept the reasonableness of the calculation of loss advanced on behalf of the plaintiff.

117 I therefore assess the plaintiff's damages for past economic loss in the amount of $161,989.

Past loss of superannuation

118 On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of $161,989. I accept that submission and I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $17,818.

Future economic loss

119 On behalf of the plaintiff it was submitted that her claim for future economic loss should be assessed in the amount of $402,815, being the projection of an amount of $1000 per week net at 5 per cent over 12 years to age 67 (x 473.9) less 15 per cent discount for vicissitudes.

120 In contrast, on behalf of the defendant a revised submission was made that future economic loss should be assessed in the amount of $130,915. That amount was calculated on the basis that the difference between the plaintiff's present net earnings and those of an Acting Principal are $325 per week net, which, when projected over 12 years (x 473.9) and discounted by 15 per cent for adverse vicissitudes yields the amount of $130,915.

121 I do not accept the submission made on behalf of the defendant as it is simplistic and it does not take into account the real difficulty the plaintiff is having with her back and hip pain, difficulty sitting, standing or walking for sustained periods. In my view these are real, substantial and intractable problems the plaintiff must continue to endure, including unpredictable fluctuations, and they must be taken into proper account in assessing her damages for future economic loss.

122 Whilst the plaintiff's submissions invoke the proposition that it can be expected that there will be a deterioration in her medical condition over time, and she may need to consider further spinal surgery, the preponderance of the medical evidence is that further surgery is unlikely to assist her and it is unlikely that it will be offered.

123 The consequence of this is that the plaintiff will continue to be in pain and will be subject not only to the requirement of working lesser hours than full-time work, as is the case now, but there is the reasonable concern she holds, because of her pain and restrictions, that she cannot see how she can continue working after another 2 or 3 years.

124 In my view, the plaintiff's self-assessment is a reasonable one based on a commonsense view of her situation. She ought not be required to struggle to continue working where it is too difficult or painful for her to do so, or where by doing so, she might aggravate her condition. The duty to mitigate does not extend that far: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. I therefore consider that due regard must be had to the plaintiff's self-assessment as I do not consider her evidence to be exaggerated in that, or any other aspect.

125 The challenge for assessment is to identify a sum that fairly compensates the plaintiff for her loss of earning capacity without largesse at the unreasonable expense of the defendant.

126 In that regard, I consider the approach taken by the defendant to be unreasonably low as it assumes continued employment for the next 12 years whereas I consider the evidence of the plaintiff as to her future work concerns, which I accept as realistic concerns, renders that approach quite unsound.

127 The economic loss approach argued on behalf of the plaintiff involves an artificial element in that a flat rate loss commencing at the time of assessment is unsupported by the evidence.

128 There is no doubt that at present, and for at least the next 3 years, the plaintiff is suffering an impairment in her earning capacity, and that this impairment is causing her to suffer a loss of income, being the difference between her present mitigatory earnings and the earnings she would have derived if she had remained in the employ of the defendant, and been promoted, as I have found in assessing the claim for past economic loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

129 Assessing that component of the claim is relatively straightforward, in that a continuing loss of $462 per week net, being the current differential earnings projected at 5 per cent over 3 years (x 145.6) yields the amount of $67,267.

130 I consider that component of the plaintiff's loss should not be discounted for adverse vicissitudes because the period is relatively short and not all vicissitudes are adverse to the plaintiff. They can also be adverse to the defendant: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485.

131 In this instance there is a strong possibility that the plaintiff may not be able to continue for the next 3 years, which justifies not discounting the loss over that relatively short period on account of potentially adverse vicissitudes as they are counterbalanced by the possibility of the plaintiff ceasing to work even earlier.

132 This then leads to the difficulty of assessing the next component of the plaintiff's loss of earning capacity over the ensuing 9 years. Difficulty in achieving an assessment is not to be regarded as an impediment to making an assessment: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, per Heydon JA, at [82]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7] - [9].

133 One way of illustratively testing that loss is to have regard to the loss as complete over those 9 years, in accordance with the pessimism with which the plaintiff sees her economic future.

134 Approaching the loss that way, the probable earnings as a Principal would be $88,200 per annum, or $1696 per week net. The sum of $88,200 is a more appropriate and reasonable measure than the income for the last part of a year. The projection of $1696 per week over 9 years at 5 per cent (x 380.1) less 15 per cent for conventional vicissitudes, yields a calculation of $547,952, which, when deferred for 3 years (x 0.864) results in a discounted and deferred calculation of $473,430 in respect of those 9 years.

135 On that approach, the two components, when aggregated, produce a total sum of $540.697.

136 If an award along those lines was made, it would have to allow for a greater discount for the possibility that the plaintiff may in fact find that in 3 years time she can continue working for a while longer in some capacity, or she may be able to continue working for the remainder of the period for lesser hours, which, either way, would result in her sustaining a lesser loss. These factors are classic imponderables.

137 Having undertaken that illustrative calculation, it seems pointless to try and illustrate further examples because of the numerous variable imponderables involved.

138 However, given my finding on the realistic nature of the plaintiff's concerns for her ability to continue working after a further 3 years, that illustration serves as a useful background guide to the assessment.

139 Having considered the foregoing factors, in my view, the most appropriate way of compensating the plaintiff for her future loss of earning capacity, taking into account all of the positive and negative factors involved in such an exercise, is to assess a global discounted lump sum buffer to cover all aspect of her loss of earning capacity, namely an amount of $425,000.

140 Whilst reasonable minds may differ on the appropriateness of that sum, I consider that an assessment in that sum is justified because of the enduring and severe nature of the plaintiff's ongoing disabilities, including her back problems, her foot drop, her constant pain, and the impact these matters have on her ability and resolve to continue working.

141 I therefore assess the plaintiff's damages for future economic loss in the buffer amount of $425,000.

Future loss of superannuation

142 There is no dispute that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 13 per cent of $425,000. I therefore assess the plaintiff's damages for future loss of superannuation in the amount of $55,250.

Fox v Wood

143 The plaintiff has received weekly payments of workers' compensation benefits in the agreed sum of $127,117. The parties have agreed that the tax paid by the plaintiff on those benefits was in the amount of $29,237. I therefore assess the plaintiff's damages for reimbursement of the tax she has paid on her workers' compensation benefits in the sum of $29,237.

Summary of damages assessment

144 My assessment of the plaintiff's damages is summarised as follows:

(a) Past economic loss	$161,989
(b) Past loss of superannuation	$17,818
(c) Future economic loss	$425,000
(d) Future loss of superannuation	$55,250
(e) Fox v Wood	$29,237
Total	$689,294

Disposition

145 The plaintiff is entitled to a verdict and judgment in the assessed amount of $689,294.

Costs

146 The plaintiff is entitled to have her costs of the proceedings paid by the defendant unless a party can show an entitlement to some other costs order.

Orders

147 I make the following orders:

(1) Verdict and judgment for the plaintiff in the sum of $689,294;

(2) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

(3) The exhibits may be returned;

(4) Liberty to apply on 7 days notice if further orders are required.

Decision last updated: 22 April 2014