GRIFFIN by his tutor A Griffin v STATE OF NEW SOUTH WALES

The event giving rise to the Cause of Action 12 The plaintiff did not remember much about attending Narrandera High School in year eight, which would have been some few weeks prior to the incident. 13 His memory was of the fists (sic) coming towards his face at school. At the time, he had grommets in his right ear as treatment for a glue ear condition, as the grommets had fallen out of the left ear. 14 In evidence, a report dated 21 March 1995 by the relieving Principal was to the effect that on 1 March 1995 the plaintiff and a Joshua Ferguson had been arguing with each other earlier in the day and there had been discussion in the classroom about a fight and a notice appeared on a notice board that a fight between the two boys was to occur. 15 The Principal's report was that the two boys went to a sloping area near the school's basketball court. The report was to the effect that the plaintiff began swinging punches first and that Joshua hit the plaintiff in the head. The plaintiff fell to the ground and was unconscious. 16 A Miss Carol Duthie was the teacher on duty and was approaching the area were the fight had occurred but was unable to prevent two boys from lifting the plaintiff and inappropriately carrying him towards the front office of the school. A Mr John Prior told them to put the plaintiff down on the ground. The school's first aid officer called for an ambulance. The plaintiff was still unconscious when the ambulance arrived but was conscious when taken from the school. A Mrs Mathieson estimated that the plaintiff was unconscious about eight minutes when she first saw him and perhaps it was about twelve to fifteen minutes before he started to revive in the ambulance. The plaintiff was taken to Narrandera Hospital 17 The relieving Deputy Principal took control of the issue and interviewed Carol Duthie and the other witnesses. The Deputy Principal's report was that the fight was pre-arranged but he was unable to interview the plaintiff to hear his side of the story. 18 The following day the students at the school were instructed that it was inappropriate to organise a fight and to go to the area where the fight occurred as that area was now "out of bounds". The subject area is masked a little from the view of staff on playground duty. On 3 March 1995 a message was included in the weekly notice indicating the essential features required of staff in an emergency. 19 The report set out that the plaintiff's mother had subsequently phoned the school and the plaintiff had not fully recovered and that he was going to see doctors on the following Tuesday and that he expected to be back on the following Wednesday. 20 The Ambulance Service report was that the ambulance officers arrived at Narrandera School at 11.42am and departed at 11.54am, taking the plaintiff to the hospital at 12 noon on 1 March were he was admitted. The ambulance officers reported that the plaintiff was unconscious on their arrival at the school, subsequent to a fight, and it was reported to them by the school that the plaintiff was hit once on the face and collapsed. The ambulance officers' report was that the plaintiff had no response to verbal and physical stimuli and his pupils were dilated. The report stated that at 11.43am the plaintiff had scored a reading of three on the "Glasgow Coma Scale", a scale used to measure and assess neurological status, he scoring one point each for eye opening, motor response and verbal response, which is the lowest mark that can be given on the scale, but that at 11.54am, the plaintiff scored fifteen, the maximum on the Glasgow Scale. 21 It was reported at Narrandera Hospital that the plaintiff had been hit on the right jaw by another student, resulting in loss of consciousness and was still unconscious when the ambulance arrived but that he was alert and orientated on arrival to hospital but was teary and dazed. The plaintiff's jaw was x-rayed but no abnormalities were detected. He remained stable but said he felt dizzy when sitting or standing up. It was reported that his right eye was swollen and felt sore but that there was minimal swelling. He had complained of a slight headache but it was not troublesome and that he was able to watch television most of that afternoon and slept soundly. That night it was reported that the plaintiff had not complained of headaches or visual disturbances and that neurological observations were normal. The plaintiff was discharged from Narrandera Hospital at 11am the following morning.

Duty of Care and Causation 22 A duty of care may be owed by any person in loco parentis to a child. In general, a duty is owed to the student by the school to take precautions as a reasonable parent would have taken in the circumstances, Commonwealth v Introvigne (1982) 150 CLR 258. Kitto J in Ramsay v Larsen (1964) 111 CLR 16 at 27 states the duty as: "If, for example, a pupil in such a school suffers harm through a failure by the government to provide reasonable supervision of "rash little boys who stay alive by luck and heaven's favour in this world of tears", the government is clearly to be held liable in damages as for a breach of duty owed to the pupil". 23 His Honour goes on to say in relation to teaching that: "Teaching involves the constant exercise of specialised skills and personal discretions, but nevertheless a teacher in a school is normally a servant of the school authority that employs him, and the principle respondent superior makes the school authority liable in tort for any act or omission of his in his employment which would be a tort if done by the authority itself", and further at 28: "The duty to take care of a pupil is not normally the personal duty of the teacher alone. In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a government or a corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care. The particular teacher who performs the tasks of care and tuition in a state school therefore performs them as a civil servant of the Crown and not on his own account only." 24 The special responsibility on schools to take care of children's safety that is imposed by law has as its basis the inexperience and immaturity of children in a setting that is designed to foster their growth and development. This duty, as pointed out by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 686, is a non-delegable duty. Miles CJ in El-Sheik v Australian Capital Territory Schools Authority (1999) 151 FLR 397 held at 408, that schools hold a non-delegable duty and that the school in this instance failed to ensure that reasonable supervision was exercised to minimise danger from a foreseeable risk. 25 However, the duty is not discharged simply by appointing a teaching staff that is competent and then leaving the suitable steps that are to be taken for care of the students to the staff. The performance of the duty to ensure that reasonable steps are taken for the safety of students is non-delegable, see for example the reasoning of Mason J in Commonwealth of Australia v Introvigne (cited above) at 269-270. Teachers are not expected to be able to prevent all forms of misbehaviour by students, but circumstances where injuries are inflicted by one student on another due to a lack of control, can lead to a finding of a negligent breach of the duty of care. 26 Narranderra High School owed the plaintiff a duty to ensure that reasonable care is taken of students attending the school. At the heart of the duty lies the basis for this special responsibility, which the law imposes on a school authority, to take care of the safety of the students. The immaturity and inexperience of the children, as well as their "propensity for mischief", is the basis for this special responsibility: Mason J in Kondis v State Transport Authority (cited above) at 686. 27 As a practical matter, once this Court has been satisfied that the wrongful act or omission of the defendant caused the harm the plaintiff is complaining of, the question in law becomes whether there exists a principle which precludes the acceptance of the wrongful conduct being the cause of the harm complained of. The guiding principles behind the High Court's adoption of a "commonsense" approach in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, rather than the 'but for' (or sine qua non) test as being the sole test for causation can be summarised in terms that are applicable to the case as follows per Smith J in Haber v Walker [1963] VR 339 at 358: "In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection, must ordinarily be either - (a) human action that is properly to be regarded as voluntary; or (b) a causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence."

The Evidence as to the Plaintiff's Injuries 28 The plaintiff said that he had lost most of the vision in his left eye although he said that he had previous scarring on the cornea. He said he had lost the sight in his eye at a rehabilitation centre called Tarkarri, at Albury. Tarkarri is the South Western Health Area Brain Injury Unit. He said that he had a massive nosebleed and a few days later he started to loose the sight in his left eye. 29 The plaintiff said that he then went to Coolamon High School about three or four weeks following the blow to his head but said that he was not able to concentrate in class and that he felt very tired and was experiencing recurrent headaches, although he had one or two previously. 30 He described the headaches as getting "hot spots" on the back of his head and said that he could actually feel the heat coming off his head with his hand. The headaches started at the back of his head and radiated to the front of his head with very sharp pains and lasting for hours. He said that he still gets headaches about once or twice a week and that he lies down in a dark place and goes to sleep. He said that the headaches usually last for about ten to thirteen hours. He said that he has noticed a difficulty in thinking which he did not have before the injury and that his concentration previously was excellent but that now the pain causes him to lie down. He said that his balance was off and he tended to lean to the left and that he fell over onto his left side. He said that his memory was poor and that he would often forget things within ten minutes. 31 He said that his memory had improved a lot but that he still had to go over a page several times before he could take any information in. The plaintiff said that his memory had improved a bit. The plaintiff left school at fourteen, having moved to Campbelltown High School for six months, where he said that he had a lot of trouble. He said that when he moved back to Wagga he was getting dizzy and had periods of unbalance and that it was during this time that his concentration rapidly deteriorated. He said that even without a headache he found it difficult to concentrate on things. 32 After he left school the plaintiff said that he tried to do some work on his own until the end of 1996 and then commenced at the rehabilitation centre at Tarkarri and that he was there for a year on and off, being there for six months straight and then he had surgery on his nose and he went back to Tarkarri and stayed there for two or three months. He said that he had a lot of testing on balance, learning, anger management and the like. He said that he was still frustrated and unable to organise himself and had difficulty getting motivated. He said that he had learnt at Tarkarri to fill out a diary and to organise planning for each day but that he often failed to fill in the diary he was given and had to be prompted. Most of the training at Tarkari was about adjusting to society as they had considered that: at age fifteen he was not ready for the work force; he still had difficulty fitting in with people; and that he had lost his friends when he went to Coolamon High School following the injury and that he had lost confidence. 33 The plaintiff told the court that he had an operation on his ear and went to TAFE, with a one on one tutor, studying numeracy and literacy with which he had had difficulties. During 1999 the plaintiff had a large number of doctors' appointments concerning hearing and seeing. He saw lawyers and had psychological testing done. He now has a hearing aid in his right ear. 34 In the year 2000 he resumed TAFE doing literacy and numeracy and completing that in November 2000. In 2001 he is studying at TAFE four days a week doing numeracy and literacy at a higher level. 35 The plaintiff said that his reading and spelling has improved. He said that he finds the day at TAFE exhausting and has to have a sleep when he gets home. He still has difficulties with dizziness and balance. He said that he is controlling his emotions better but that he still on medication. The plaintiff told the court that he had had an ambition to be an air force pilot but that he would probably do a trade course of some kind as he was good with his hands and could be fairly competent at that. He said that he had been doing electronics and enjoyed model planes but that after his injury he had difficulty with the tiny pieces involved in model planes. 36 The plaintiff's evidence was that he had been slower in his reading, but that a new principal at Ganmain Public School meant that everyone came up to the level where they should have been. The plaintiff has said that he has been enrolled in a TAFE course for two years and he has a further two years of study left in order to complete this course. The plaintiff has said that he has passed all subjects that he has undertaken and that when he completes this course he wishes to look into other forms of education. He has indicated that he would like to complete a Year 10 Certificate in order to meet the requirements for entry into a trade qualification course. 37 The plaintiff said that he did not suffer blackouts since the accident, but that the one incident at Coolamon occurred when someone kicked a ball in his direction and that when he tried to stop the ball he became very giddy and dizzy. He fell and broke his arm. He said that the dizzy spells continued until he started on the medication he is presently on. He still suffers from a loss of balance and has to sit down. 38 Domestically, he has tried to do household chores such as cleaning and vacuuming but finds these tasks physically exhausting. His mother does the cooking and washing. He says that he now reads a lot. He has told the court of an incident with a bicycle where he tried to mount his bike but fell off shortly after. He has not used the bicycle since. 39 He said that his academic performance prior to his injury was average. He now expects to do a trade using his hands. He says his mother looks after the money, being the disability pension that he receives and that on one occasion he was given a ten dollar note by his mother to purchase some items. He was given the wrong change and has lost confidence in himself. He could not return to query the wrong change as a result. He says that he does not have good social relations and only gets along with the people in his TAFE course. He says that he has found it difficult to do gardening and general work around the house. 40 He told the court that he did not remember the fight and that he did not know Joshua Ferguson, although he knew of him by name. He did not know of any arrangements pertaining to the fight. The plaintiff has also told the court of surgery on his nose, which was done in order to correct a deviated septum and a reduction of a turbinate bone. 41 The plaintiff attributed his fractured nose to the assault. His reason for that was that the fracture was not picked up prior to the assault. The plaintiff has said that he suffered damage to his cornea and that he is still complaining of a complete loss of vision, with the exception of a dark room with a bright light. It is only under these conditions, that he can make out shadows and some grey. 42 The plaintiff remembered visiting a Dr. Clayton Barnes, an eye specialist and that this doctor carried out tests. He recalled Dr. Barnes telling him that he had vision and that the plaintiff was lying and making up the problems with his vision. The plaintiff did not remember telling Dr Barnes when came back to see the doctor some ten days later that he could see out of his left eye. He also saw a Dr Chris Bailey in Wagga. 43 In cross-examination he said that he remembered seeing Dr. Bailey but did not remember what Dr. Bailey said to him, when suggested by Mr. Murray QC, that Dr. Bailey said he thought that the plaintiff could see out of his left eye. When it was put to the plaintiff that Professor Bilson said there was nothing wrong with his eye, the plaintiff said that he could not remember what Professor Bilson had said. 44 When asked about going back to school, the plaintiff said that he had stabbing pains radiating from the back of his head and that he was in tears. He said that when he stayed at home, his mother obtained for him books in order for him to do work at home. He said that during this period, 1995 and 1996, his mother and father separated after his father's business collapsed. It became necessary to sell the family home. The plaintiff has said that he did not feel confident going back to school, which is the reason why he chose to go to Tarkerri in Albany. 45 The plaintiff's evidence was that over the past two years attending TAFE, he had developed a lot more confidence and although he still gets headaches and has the balance problem, he is slowly getting better and that he has improved his numeracy and literacy skills and that he loved what he was doing now. The plaintiff said that he proposed to look for work when he finished his studies. He said that he plays computer games and on nights when he was not doing an assignment he would spend up to three or four hours on the internet and that in his course he was doing spread sheets and learning how to organise information and was doing a course "Understanding the Internet" that he had caught on to quickly and that he had fifteen words a minute typing skills and that he was printing his own letters and that he had done a computer calendar for next year on the main computer. 46 He said that if his mother was not there that he would attempt to wash his clothes but thus far he has been confused when his mother has tried to teach him how to use a washing machine but that he helps hanging out the washing. 47 The plaintiff's mother gave evidence that the plaintiff was born with a hearing problem and that he had a "glue ear" condition. She said that she did not remember that the plaintiff had recorded that he had a balance problem and that he had grommets inserted when he was fairly young. Her evidence was that there was one teacher at Ganmain and about three to four hundred pupils. She denied that the plaintiff was having problems at school with tantrums and that she had not seen him display this. The plaintiff's mother told the court that the plaintiff had reading difficulties at Ganmain Public School around year five and blamed this on a change of many teachers in a short space of time and that she had taken over librarian duties at the school. She said that before 1995 she had not noticed any problems that the plaintiff had and that she had never been told that he had problems persevering with tasks. She did however say that when the plaintiff first went to Narrandera High School he went into a remedial reading class but the teacher at Narrandera had said that it was unnecessary, as he did not need remediation for his reading. 48 After the incident at the school the plaintiff's mother picked him up from hospital and she said that the plaintiff had fallen asleep on the way home and that she noticed from that time that he was sleeping up to eighteen hours a day and that he complained of tiredness all the time and had lost his appetite and this was a total change in the plaintiff's behaviour. 49 She told the court that the plaintiff went back to school after three weeks but that he was falling asleep in class at Coolamon Central School. She said that when he attended Coolamon High School he experienced regular nosebleeds, lethargy and that he was falling over. He was put on Epilim and she said this was for petit mal seizures, which she described as staring episodes. She said that the Epilim did not improve the situation. 50 She said that whilst he is now enthusiastic about his TAFE course he comes home and sleeps in the afternoon. The plaintiff's mother said that after separation that she and her husband were on good terms. 51 In cross-examination the plaintiff's mother was asked about the period between 1983 and 1986 when the plaintiff turned his right ear to sound as he had difficulty hearing with his left ear. She denied that he had ear infections and that his ear and balance were affected. She told the court that the plaintiff had had eye problems with his left eye and that spectacles were prescribed, which he now wears. She remembered going to an eye specialist, Dr Bailey in Wagga and ultimately Professor Bilsen, in Sydney but said that Dr Barnes conducted experiments but that later she could not remember whether she had been told by Dr Barnes, notwithstanding that it was a matter of great concern, as to whether he could see out of his left eye. 52 She said on transcript p71: "Q You denied that Dr Barnes said that he had reasonable sight in his left eye? A No, I don't deny it. I don't remember him saying it to me. Q It is not something you would forget is it? A We have seen so many doctors, it is hard to remember what they all say. I just do not remember him saying that to me." 53 In cross-examination the plaintiff's mother said that, although there were three to four hundred pupils at Ganmain School that the balance of the teachers were substitute teachers. The plaintiff's mother said that in year four she was aware that the plaintiff's reading age was below his chronological age. 54 The plaintiff's mother said that the plaintiff persisted with school for a time after he went back to school at Coolamon but that the principal teacher told her not to bring him back and that in the September there were inquiries from the Department of Education as to why he was not at school and that she had told that person that the Principal of Coolamon had told her not to bring him to school and that she had said that the plaintiff was suffering from fits. The plaintiff's mother said that she could not deny that Ms Lowe from the Department had suggested that distance education or curriculum modification could be arranged. She said that instead of going back to school, since the schools had said that they could not cope with the plaintiff as they did not have the requisite support staff so, he was then enrolled at Tarkarri. 55 The plaintiff's mother said that since enrolment in TAFE the plaintiff has increased his schooling to four days a week, that he is studying computers and that there was a general improvement in his attitude, in that he was very positive and that he can look after himself in terms of doing his own room, getting himself a sandwich, cleaning his shoes, shaving and attending his oral hygiene, although it took him a long time to get the shaving right and often he would forget to use soap so it was necessary for her to check on him.

Medical and Rehabilitation Evidence 56 There were a considerable number of medical reports tendered by both plaintiff and defendant, which were all admitted without challenge, except for the reports of the witnesses called to give evidence. Both the plaintiff and the defendant called an expert witness to give oral evidence in respect of the respective cases. 57 A clinical psychologist specialising in neuropsychology, Dr Peter John Rawlings, who practiced at the St Vincent's Clinic in Sydney, gave evidence concerning his examination of the plaintiff in 1998, 2000 and 2001. In his view there are clear indicia of deficits from the concussive injury, from which the plaintiff suffered but there are no signs of brain atrophy or overt injury from the CT scans or the MRI taken of the plaintiff's brain, but that it is not unusual for people who suffered diffuse brain injuries to demonstrate normal brain CT scans and MRIs. Dr Rawlings said that he had been told that there had been a fractured nose, a malalignment of the jaw and a perforated eardrum, associated with reduced hearing. 58 His evidence was that there was some variation in the plaintiff's pre-injury IQ tests, but the variations were not enough to be of clinical significance. Dr Rawlings' evidence was that when the plaintiff was eight and nine he was scoring in the low nineties on verbal and performance IQ, but that a different test was performed at the Brain Injury Unit at Parramatta, by a Polly Pickles, using a different test, which found that the scores returned in that assessment were in the borderline defective range, so that there appears to have been a decline initially, and that she also found attention problems. However, when Dr Rawlings saw him in 1998, the IQ scores were pretty much at the level you would expect on the basis of the pre-injury assessment. 59 Dr Rawlings' evidence was that the plaintiff had attention problems in his pre-accident assessment, but subsequent to the accident, the plaintiff's attention deficit had become more wide ranging, with a drop in the IQ. Dr Rawlings' evidence was that there was no evidence of a memory problem or expressive language deficit and that he could not say that there was any evidence of acquired speech disorder. Dr Rawlings stated that the plaintiff's reading was adequate, at the level of functional literacy. He further opined that there were lots of forces at play in explaining his present level of functioning. 60 In referring to the evidence of two of the plaintiff's treating doctors, Dr Rod McMurdo and Professor Walters, Dr Rawlings said that it was hard to explain the current level of disability entirely in terms of his brain injury and attention deficit, but that where attention ability is diminished the sort of routine tasks that everyone carries out, require a lot of mental effort and can be exhausting. 61 On p45 of the transcript, Dr Rawlings, in answer to a question from Mr Toomey QC about attention deficit, said: "Q What effect does that have, do you think on employment prospects? A Well it's going to make it hard for him to maintain an adequate level of functioning over the course of the working day or week. So you would expect, on what I have in front of me, that there is any number of jobs he has got that intellectual ability to cope with, what will beat him or cause problems for him at least is his consistence over time. He will tire. He's more likely to make mistakes. And then with David you have got the emotional sequelae to this accident whereas lost confidence, become dependent, withdrawn, all products of trauma." (transcript p45 lines 7-18) 62 He described the TAFE course that the plaintiff is doing as a remedial course which is designed to bring people up to scratch to do a School Certificate. 63 As to employability, Dr Rawlings said: "Q And what is your experience of the effect on employability with the sort of deficits that David Griffin has? A There is a great source of frustration with these patients for the rehab provider. I'm sure there is for the patient as well. But because you can sample their behaviour either by observation or by neurological test, and you can get quite encouraging results. But that doesn't translate into consistency of performance with these brain-injured people because they're not attending, because they are tired, they're uneven in their performance, and that is what creates the problems. So it's very hard to know, you know. If there was a very tolerant, accepting employer, I suppose you would have to allow the possibility you might survive. But you think in most employment situations he is going to find it difficult, especially when you start to throw in or consider these emotional factors. Like we saw in the Courtroom, he can quickly fall apart on you. Q Do you think his presentation is going to change much over the years? A As a person interested in rehabilitation you would like to think so. Because I think his current level of disability is far in excess of what could be explained by his brain injury. And, you know, I would certainly like to see a trial of some kind of program that encouraged more independence because I certainly think he is capable of it. But it would be a long road. I think Dr McMurdo's talked about a sustained behavioural program of intervention. That would, you know - we'd set him up with a lot of support, and then gradually withdrawing that support, giving him a living skill. Q Can you guarantee that such a program would work? A No there is no guarantee that such a program would work. You would like to see it tried because of his youth. But the chronicity of his symptoms is not a good indicator". (transcript p46 lines 22-58) 64 As to looking after himself Dr Rawlings said that the plaintiff is currently unable to do so, but that he should be able to do so.

65 In response to the question put by Counsel: Q Can I ask you this: On the evidence as it now presents, and taking into account of what advances might be made with some more help, do you or do you not think there will always be a substantial compromise of his employment ability? A At this stage I'd have to say yes." (transcript p48, lines 18 - 23) 66 Dr Rawlings stated that the plaintiff does not have a reading problem that the plaintiff's difficulty in retaining and manipulating information along with the ability to resist distraction, which is indicative of a mild to moderately severe degree of attention deficit, but also noted that depression can be a factor in attention deficit. 67 Dr Rawlings said that in employment such as animal husbandry, an area where the plaintiff has in the past shown some interest, the plaintiff could work under direction where there is no real pressure on him and that it would be possible for him to work at that level (transcript p55, lines 22-25). Dr Rawlings opined that: "The important thing is, although there was this weakness on the test in the early assessment the fact that the IQ scores then there were far above those attained immediately after the assault. So we have good evidence as far as it goes that after this there was a significant decline in his intelligence and then like all head injuries there was a return and recovery of function. He showed exactly that pattern." 68 When cross-examined on the Glasgow Coma Test that had been administered at the time of the injury, Dr Rawlings said that it was impossible to fake the pain reaction part of the test. 69 The defendant called a Dr Fernando Roldan, a clinical psychologist who is a consultant to the Commonwealth Rehabilitation Service in neuro-psychology. He examined the plaintiff in June 2000, and subsequently produced a report dated 24 July 2000, which was admitted in evidence and supplementary comments on 20 July 2001, he having being provided with the reports produced by the plaintiff and the defendant. 70 Dr Roldan's evidence, having examined the various reports and IQ tests administered, opined that the pre and post injury results were generally the same for the plaintiff and that all figures are within the normal range of error and that there was no discrepancy. Dr Roldan said that the attention concentration deficit was present prior to the accident and that there was no change following the accident. 71 Dr Roldan stated in his report, and confirmed in his oral evidence, that: "[There] is no compelling evidence to suggest that the incident in question resulted from brain trauma and related to changes in cognitive function." (transcript p93, lines 25-27)

And further: "He obviously is going to have some difficulties due to his pre-existing literacy problems, but I don't see any related difficulties for him to enter the workforce." (transcript p 93, lines 39-41) 72 Dr Roldan in cross examination that in part his basis for his conclusion that there was no compelling evidence that the assault resulted in brain trauma, was that there was only a three to five minutes of unconsciousness prior to the arrival of the ambulance, and that the figures for the Glascow Coma Scale might not necessarily be a result of the infliction of serious pain on an unconscious patient. Dr Roldan said that he disbelieved the plaintiff was unconscious in the same way he disbelieved the plaintiff in his claim that he had lost vision in one eye. 73 Dr Roldan's evidence was that there was no physical and psychological evidence to support the claim of brain damage, although he agreed that a MRI scan did not necessarily indicate where there had been internal brain lesions. Dr Roldan said that the plaintiff is highly suggestible and that his mother plays an important role in the manifestation of these symptoms, and that he was sceptical about the accuracy and reliability of the reporting of various symptoms. 74 In a report of the clinical psychologist, Polly Pickles at the new children's hospital, dated 5 November 1996, the following opinion was offered: "The results of intellectual testing are difficult to interpret; however there is evidence on testing of marked cognitive slowing, difficulties in sustaining mental effort and loss of cognitive efficiency, with limitations in the amount of information he is able to hold in mind, which are consistent with the aftermath of mild brain injury. It is clear that any formulation of David's current presentation must be multifactorial, drawing on recent literature on the persisting cognitive and neuro-behavioural effects of mild brain injury, the post concussive syndrome, the known high incidence of post traumatic stress disorder following minor brain injury and other psychosocial factors specific to David and his family's situation. Such a formulation would include recognition of David's premorbid strengths/weaknesses, some cognitive slowing, inertia and loss of efficiency attributable to the injury itself, which impacted on his ability to cope with the demands of High School and were inevitably exacerbated by David's experience of failure over succeeding months, involving as it did further changes of school and a number of disruptions at home. The likely scenario is of a vicious cycle of failure, frustration, loss of confidence, anxiety, depression and withdrawal, in turn impacting on family relationships. I understand that David and his family were offered no psychosocial support at this important time in their lives; there was no information provided to his school(s) about possible difficulties and hence appropriate expectations of David, and medical investigations have to some extent proved frustrating. In summary, while the results of intellectual assessment are difficult to interpret, it is clear that an understanding of David's current presentation cannot rely on an explanation in terms of amnesic difficulties. The examples described as instances of forgetfulness are more likely to be attributable to difficulties in registering and in coding the relevant information, consistent with the processing limitations seen on testing today. It is likely that there has been a complex interactive process of some organically based damage exacerbated as time went on by inappropriate demands on David, inadequate information to David, his family and teachers and an escalation of stress arising from this and other causes affecting David and his family, and resulting in a functional level at present well below age expectations." 75 In the report of the South West Brain Rehabilitation Service, dated 5 June 1997, in discussing non-verbal tasks it was stated: "[However], he had no difficulty switching from one way of thinking or 'mental set' when required, and demonstrated appropriate deductive reasoning skills for his age." And further said, "David's reported argumentative and disobedient behaviour at home would also be likely to be contributed by being constantly at home rather than school, with little structure in his lifestyle as a result, and apart from his mother, having little social contact." 76 The South West Brain Injury Rehabilitation Service admitted him to correct difficulties. Dr Steven Ring, consultant neurologist, opined that the plaintiff had suffered symptoms consistent with post-concussion head injuries syndrome, causing him to be groggy, confused with poor memory and sore muscles. 77 Dr James Middleton, a rehabilitation medicine physician, in his report of the 14 December 1998 was of the view that there was no guarantee of achievement of employability in the long term. Dr Middleton was also of the opinion that the plaintiff was not likely to hold a driver's licence, mainly for psychological reasons. Dr Middleton, in his report of 28 May 2001, expressed the opinion that: "Certainly Mr Griffin currently continued to present as a person with very limited capacity to sustain himself as an independent functioning adult in the community and as being likely to need considerable support and assistance in structuring, organising and planning his life and also as a person likely to have extreme difficulty achieving transition from education to paid employment in any open labour market situation. Whether his capacities, in regard to those broad areas of functioning, could improve was not an issue that could be determined with certainty. There may be some further indication available through review of his progress at the Brain Injury Rehabilitation Unit and with any further more recent such inputs and it may, at some stage, be appropriate to consider referral to some transitional independent living service for further rehabilitation assistance, directed particularly at areas of independent living skills that he would to develop to be able to function effectively independently in the community if his family support ceased to be available for whatever reason." 78 Dr Clayton Barnes, in his report of 2 November 1998, explained the tests that were carried out on the plaintiff's eye, including a test, which shows conclusively, in his opinion, that the plaintiff could see out of his left eye and that he suggested to the plaintiff, that he could see. A further report of 13 November 1998, which was also admitted without challenge, Dr Barnes notes that the plaintiff has bilateral myopic astigmatism and that: "He now accepts that he can see out of the left eye, and I have explained to him why the vision in this eye is not as good as the right eye, because as I have said before, he has chronic corneal scarring on this eye which dates back to before his assault." 79 Elizabeth Fagan, paediatric neurologist was of the view the neuropsych testing that she had carried out, had established a large number of difficulties for the plaintiff, with the possibility of some functional overlay. 80 The consultant child psychiatrist, Dr Brent Waters, in his report of 24 August 1999, opined the view: "The neurological opinions also do not appear to provide a clear diagnosis of an underlying neurological disorder although I note that Dr Geoffrey Coffey is of the opinion that the head injury itself was of only mild to moderate severity which triggered significant behavioural disturbance and psychological upset. It is not clear whether he believes that there has been any permanent brain damage." Dr Waters further notes that, "David's relationship with his mother has a rather clinging quality. It is possible that she has over-protected him and that has led to some rather immature behavioural traits which he shows now, however she expresses considerable distress at these behavioural changes in him, so even though she may be promoting it to some degree, it is in my view that she in not reinforcing it to such a significant degree that her over-protectiveness is the major causative factor." 81 In relation to the medication (Epilim) that the plaintiff has prescribed for him is on, Dr Waters is of the view that: "When off Epilim, he seems to become more irritable and aggressive, but it is difficult to tell how much of this is just a withdrawal phenomenon as he has not been off Epilim for very long and how much of it would represent a stable behavioural trait. In any event, it is my view that this as well is probably a manifestation of an atypical behaviour disorder resulting from dysfunction in the frontal and front-temporal area." 82 The plaintiff's behavioural difficulties, in Dr Waters' opinion is: "…that it is more probable than not that one major determinant of David's behavioural and personality change is underlying subtle brain problems of an undisclosed nature. A second determinant is behavioural changes associated with Epilim. A third and minor determinant is a degree of over-protectiveness by the mother, perhaps associated with David's reaction to his parent's separation." 83 In relation to plaintiff's social relationships and activities of daily living, Dr Waters expressed the view that the plaintiff is grossly impaired. He goes on to note, that: "He is dependent on his mother to a very significant extent and it is likely that unless there is a dramatic change, he will not be able to become fully independent. There is also no indication that he is going o be able to pursue any vocation which will render him employable. Finally, his immature social behaviour makes it unlikely that he will be able to form mature adult relationships and have an independent interpersonal intimate life." 84 The plaintiff also tendered a report of Dr Greta Goldberg, clinical psychologist, of 11 February 1999, in which it was opined: "The assault injuries have aggravated pre-existing learning difficulties that he had begun to overcome with remedial help during his primary school education. The traumatic experience may have exacerbated psychological and social stresses in David's previous adjustment and in the stability of his family life. The injuries may also have aggravated his pre-existing medical problems with the right ear." 85 She further expressed her opinion in relation to his employability, in her report of 11 May 2001, that: He will need continuing services of vocational counsellors and rehabilitation providers in order to help him choose, find and keep a permanent job suitable to his limitations and needs. He is now 19, not working and slowly obtaining literacy skills at TAFE. By the age of 23 he should expect to be suitably employed. He will therefore be likely to need ongoing vocational and rehabilitation counselling on a monthly basis for about 2 years. The cost of this, using the fee guide for fully trained psychologist provider, would be approximately 24 months @ $165 per month i.e. $3960. 86 Goldberg in relation to the plaintiff working with animals, is of the opinion that: "His vocational preferences are for outdoor jobs involving animals and he may be able to be an assistant in a business of this kind. He does not want to work on a farm or with horses due to previous problems with those situations and this is a further restriction. If he were to work in a pet sop or any kind of retailing he would have difficulty with his numeracy. I tis unlikely that he will find work as a labourer due to the physical limitations of his knee and his fatigue." 87 As to the loss of eyesight in the left eye, Dr McMurdo, psychiatrist, whose report dated 26 July 2000, tendered by the defendant, examined the various reports and commented that the plaintiff was tidily and appropriately dressed, that he was clean and well groomed and that through the consultation was pleasant and co-operative, appearing to be in good spirits, smiling and laughing appropriately. 88 There was no evidence of a disordered pattern of thinking, or delusion ideation or any evidence of psychotic manifestations. He had no difficulty answering questions put to him and he understood normal vocabulary and style and had no problem communicating or hearing. He noted that the plaintiff's demeanour changed remarkably when he went into the waiting room to be with his mother and sister, although it was a relatively short observation, he seemed to slump in his appearance and to be sad in his facial expression whereas immediately before he had been standing erect and speaking and smiling appropriately with Dr McMurdo. 89 Dr McMurdo, commented on the Dr Geoffrey Coffey that it is unlikely that any brain damage in the assault would have caused loss of vision in the left eye, and noting that an ophthalmologist was unable to find any evidence of organic damage to the left eye, that the lack of vision does not appear to be organically determined but is almost certainly a psychological problem and falls under the diagnosis of hysteria or conversion disorder.

Damages and Causation 90 I find that the plaintiff suffered a moderately severe blow to the right hand side of his head, when struck by another pupil in the grounds of the school on the day alleged. He clearly fell to the ground where his head inevitably must have received a further concussive insult. 91 I consider that he was in fact unconscious and was not feigning that condition. Ambulance officers, who have to make decisions about procedures to be taken to sustain life, are experienced in examining unconscious people. For the plaintiff to be faking such a state would require him to decide to do so in between receiving the blow and hitting the ground or immediately following hitting the ground. He was under observation by a large number of people and was carried by two pupils inappropriately, to where he was finally placed on the ground in the recovery position. For him to act out such a feigned condition seems most unlikely. I am, therefore, of the view that the unconsciousness was not feigned. The fact that there was nothing measurable on CT brain scan or MRI proves nothing one way or the other. Obviously, if he faked blindness in his left eye, there is more reason to look carefully at any symptoms for faking, generally. 92 It is noted that in interviews and psychological examination and psychometric testing there is no evidence that the plaintiff was faking such results and indeed several of the reports showed that it was clear that the plaintiff was doing his best in those tests. This is not consistent with a malingerer. 93 There is no doubt that the plaintiff had evidence of balance problems, severe auditory problems and school performance prior to his injury. The school records show that there was attention and concentration problems at that time. The explanation tendered as to the plaintiff being in an inadequately staffed school coupled with composite classes are not in my view consistent with the IQ testing results and it is unlikely that Mrs Griffin's evidence as to this being the basis of his problems, can be accepted in light of the evidence of the school counsellor, Ms Knox. 94 Clearly the pupil teacher ratios were not as large as suggested by Mrs Griffin. There is evidence of a reduction in the IQ testing some little period after the brain injury was sustained and this is in the opinion of several of those giving evidence, consistent with a moderately severe injury to the head. It seems clear from an examination of all of the later psychometric testing and IQ results that the plaintiff has returned to his previous IQ, which is in the low to mid average range. 95 As to the blindness in the left eye, it seems to be clear that there was a pre-existing weakness as a result of the herpes simplex infection and that the injury, as suggested, is unlikely to have been caused by the blow to the head, based on the evidence as to the nature of the blow. Although there may be psychological and/or hysterical overlay, on the evidence of Dr Clayton Barnes, it is fairly clear that there was no blindness in that eye, based on testing that he had carried out on the plaintiff. His opinion has not been challenged. 96 The plaintiff remembers the challenge put to him by Dr Barnes that he was lying about his eye, but the plaintiff's mother, who was involved in some of the discussions, does not remember the contention that the plaintiff could in fact see with the left eye. She cannot deny that it was not said, notwithstanding the fact that this was a catastrophic event, to loose the sight of one eye and to be told that in fact, the vision in that eye was not lost, is something that one would expect to be remembered. It does not make sense that she would just not remember one way or the other. She does not therefore deny the evidence contained in the report of Dr Barnes. I find that, although the evidence is clear that there is a weakness in the left eye, which is being corrected by the plaintiff wearing spectacles, that there is no functional blindness in the left eye. 97 The plaintiff appears to have, in the examination of his IQ in the year or so following the injury to him, suffered a loss of intellectual capacity consistent with a moderately severe blow to the head. The evidence before me is that, it is not unusual for there to be such a diminution, but that in time this recovers. The evidence that is before me of the several testings, is that the plaintiff has recovered to his intellectual capacity appropriately for someone of pre-accident capabilities. I do accept the evidence of Ms Polly Pickles, that there was a reduction in his pre-existing capacity. I also accept that the plaintiff now has the same intellectual capacity as he had prior to him sustaining the injury. That is not to say that he is the same person that he was, prior to the injury. 98 The severe dislocation of his schooling resulting from the symptoms that he suffered immediately afterwards and for the months and years that followed, shows someone who was already limited in his intellectual capacities, with numeracy and literacy skills as well as having a number of medical problems, commencing from the age of about eighteen months with his hearing. This, together with a degree of functional overlay, and an overprotective mother, who has not encouraged him back to school, but has attempted to solve educational problems herself has meant that he has been severely disadvantaged psychologically in his personal development as well as in his educational attainments. 99 It is clearly within the realm of contemplation, that, such a mother would become overprotective and not unusual in the light of the family disruptions, which occurred at about that time. Attempts by the Department of Education to get the plaintiff back into school probably were not helped by the comments made by some teachers at some schools, that they did not have the capacity to give him the intense educational needs to which he was entitled. 100 The adjustment and rehabilitation at Tarkarri, as well as the TAFE course that he is now undertaken, have all contributed to the amelioration of the damage suffered, but there clearly was damage suffered by him as result of the injury and the subsequent dislocation of his life. His capacity to be on the internet for three or four hours does not prove that he has recovered completely, and indeed, people with problems in their lives can still function adequately in areas such as internet usage, whilst having other educational deficits. This along with the Sony Play Station game to which the plaintiff refers, are also not necessarily proof of a high level computer skills. 101 As a result of a moderately severe head injury, the plaintiff has suffered severe dislocation to his personal life, his educational development as well as the amenity of his life. He will take a long time to get back to anywhere near what was his, albeit limited, potential prior to the accident. He has lost a large part of his social life and enjoyment, normally experienced by people from thirteen years to twenty years. It will take some time before he is back into the community, and indeed, it will take some time before his capacity to test the job market will be developed. 102 I do not consider that the plaintiff has established that the deviated septum or the other operations, he has had to his head are necessarily, a result of the head injury, which he sustained. The broken arm, which he sustained when he fell whilst trying to kick a football, does not seem to me to be a consequence of that head injury. He has however, lost the capacity to participate in sport and he has been significantly disadvantaged in that respect.

Contributory Negligence 103 The defendant, having admitted breach of duty, left at issue contributory negligence. An examination of the negligence alleged, which is admitted by the admission of breach has, in my view, failed to establish contributory negligence as particularised by the defendant. That is, it was alleged that he failed to abide by school rules, or look out for his own safety, in his failure to heed school warning not to fight and failure to notify a teacher about the arranged fight. 104 Contributory negligence in essence, is a failure to take care for one's own safety. The test is the same as that for negligence save that the defendant assumes the burden of establishing contributor negligence on the balance of probabilities. There cannot be, by definition, one hundred percent contributory negligence: see Wills v Black; Landon v Black (1990) 12 MVR 222 and Wynbergen v The Hoyts Corporation Pty Ltd (1997) 149 ALR 25. The Law Reform (Miscellaneous Provisions) Act 1965 in s9, inter alia, provided that: "If a person (the "claimant") suffers damage as the result partly of the claimant's failure to take reasonable care ("contributory negligence") and partly of the wrong of any other person: (a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage..". 105 For that reason, the court will have regard to the relative responsibilities of the parties involved when apportioning damages, if the defendant establishes contributory negligence on the balance of probabilities. Matters that are to be considered are age, experience, relative knowledge and the risk of the activities of each party. 106 Whether or not leaving pupils unsupervised amounts to negligence will depend on the circumstances. For example, in Bills v South Australia (1985) Aust Torts Reports 80-703, the lesson had finished and the pupils had been told to stop using the trampoline and there had been nothing that would have indicated that disobedience would occur. Consequently, no negligence on the part of the school had been found. However, there is authority for the proposition that the duty to supervise may include a duty to prevent students injuring themselves as well as protecting students from being injured by other students. An example of this latter situation can be found in Geyer v Downs (1977) 138 CLR 91 and in the decision of Grove J in Gray v New South Wales (unreported, NSWSC 27 February 1998) where his Honour held that the education authority was held liable for the consequences of not providing appropriate supervision, as there was knowledge of a particular student's propensity for violence. In this instance, pupils were left unattended during the lunch hour in a classroom on a wet day. 107 The fact of the situation in this instance, is that the teachers were aware of the fight that was to occur and this knowledge was displayed on a notice board. A teacher approached after the fight had occurred. There was in this instance, no supervision, given that the staff was aware that a fight was to take place. The education authority is liable for the consequences of not providing appropriate supervision. 108 The very fact that the Acting Principal had to instruct the school on these issues the day after the assault, and there being no evidence of prior instruction, underscores the lack of evidence of there being any appropriate instruction. The plaintiff had only been at the school for the few weeks of February and does not remember much of that period. It is likely that if there had been any such appropriate instruction that evidence would have been given of such instruction to the school generally and in particular the plaintiff. The fact that the teacher was not on duty, that the events occurred in an area which was subsequently placed "out of bounds", in my view, shows that the defendant has not established contributory negligence on the part of the plaintiff. General Damages 109 I respectfully begin with the words of a judge with the foresight to recognise the direction this area of law was heading. In this era of greater scrutiny of judges applying and interpreting the law as set down by government with the principles of Common Law, it is important to remember the reasons why this area of law came into existence. Dixon J in Lee Transport Co. Ltd v Watson (1940) 64 CLR 1, at 13-14 in discussing general damages being awarded, held: "The standards by which the amount of general damages is to be fixed are identifiable and uncertain, and to estimate the sum to be awarded involves the exercise of a form of discretionary judgment." and further, "No doubt it is right to remember that the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damage in terms of money. But, while remembering that fair compensation between the parties is what must be arrived at, it is equally important to keep in mind that after all it is compensatory and that the figures to which in former times courts grew accustomed ought not to govern our notions of what should be awarded in terms of the money of to-day with its reduced purchasing power". 110 It must be remembered that the law of torts is concerned with the effects of social correspondence between people in their day to day living in modern society. The law of torts, then, can be seen as: "Arising out of the various and ever-increasing clashes of the activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the person or property which may in any of a thousand ways affect the person or property of others - in short, doing all the things that constitute modern living - there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses and afford compensation for injuries sustained by one person as a result of the conduct of another." Wright, Introduction to the Law of Torts, 8 Cam LJ 238 (1942) 111 Taking into account the comments above, the estimation of general damages which is contended on the part of the defendant to be between seventy thousand and eighty thousand dollars and on the part of the plaintiff to be between one hundred and fifty thousand and two hundred thousand dollars, I consider that a proper sum for loss of amenity of life, of his potential capacity and the loss of enjoyment of a significant part of his life which will project for many years in the future, if not his whole life if it effects his employability, is the sum of one and hundred and twenty thousand dollars and I allow interest on past general damages, at two percent for seven years and that in terms of the damage he has suffered in the past as against in the future, it is appropriate to allocate fifteen percent of general damages to the past.

Economic Loss 112 Both plaintiff and defendant suggest, as of date of hearing, the sum of thirty nine thousand dollars for Past Economic Loss. I consider that the plaintiff would have continued to year ten, and then taken on some sort of trade course or apprenticeship or other skill which he may have been able to do on an apprenticeship wage, or on a part time basis. I consider it unlikely, with his intellectual potential, he would have gone beyond year ten but with his level of optimism in matters relating and interest in nature and animals, there was potentially a number of positions available to the plaintiff. I therefore accept the Past Economic Loss component to date of hearing, to which I would add a further seven thousand dollars to date of this judgment and would allow interest on Past Economic Loss for three and a half years at half of the Supreme Court average of four and a half percent.

Future Economic Loss 113 I consider that the plaintiff could have enjoyed a relatively low level of remuneration in his employment, and that it will be some time before he is able to earn that range because of time to complete a trade course, whether as part of an apprenticeship or not. I accept the defendant's contention that there should be a loss for a further period of five years in that there is a further two years to complete his present course and three years to complete a trade or other qualifying course from today, and that the four hundred and fifty dollars weekly net, submitted, seems appropriate but that this should be less fifteen percent for vicissitudes. 114 For the balance of his working life, which I take to be forty four and a half years, it seems to me that some of the problems which he suffers that are attributable to the injury, will mean that he will need a somewhat more understanding employer and thus, there will be significant periods of unemployment going beyond the fifteen percent vicissitudes, which I allow as a reduction on future loss of earnings. The averaging process does not include the normal employment loss included in vicissitudes. 115 Taking into account that there will be significant periods of unemployment, I have averaged out each year to achieve the difference between the wage that he would otherwise have earned from what he is likely to actually earn, taking into account that he was never likely to have a high income on his intellectual capacity and pre-existing problems. 116 I consider, therefore, that future loss of earning should be based on a loss of two hundred and fifty dollars per week for thirty nine and a half years, delayed five years, being the time he would enter his working life.

Loss of Superannuation 117 I will need further assistance in relation to loss of superannuation, in light of any developments in the law, since the hearing. This can be done by written submission from the parties, based on the findings that I have made.

Domestic Assistance 118 It is clear that there are always problems to get teenage boys to use soap and such a problem is not exclusive to those who have some sort of brain injury. It is clear, however, that there has been an additional load on the plaintiff's mother during the period of his not being at school and the problems of having to take the plaintiff to Sydney for the various medical, legal and psychological treatment, so I therefore allow the sum of ten thousand dollars for past domestic care, for that over and above normal parental care. 119 I consider, however, that the plaintiff will have needs for additional house cleaning assistance, over and above that which would otherwise be provided. He has been socially disadvantaged, and he has yet to establish a relationship with females and will loose, for a significant period, the assistance of shared accommodation, as an alternative to which his mother now provides. It is, in my view, unlikely to be significant in that he is now able to do his own room and can make simple meals, probably not inconsistent with most young men, but I can see no basis for the claim by the plaintiff for twenty hours per week. 120 The defendant, quite correctly, submitted that in his case it may take a little bit more organising than others. I consider that this is correct, but as a result of the injuries the plaintiff has suffered, I do consider that he will need assistance several days a week, more than he would otherwise and would allow six hours per week at twenty dollars per hour, to cover, not only domestic, but gardening and other requirements, which I accept he is unable to carry out. 121 I will also allow Past Out-of-Pocket expenses, which were agreed at fifty three thousand, two hundred and seventy nine dollars, together with such sum as may be submitted, for the period from hearing to judgment. I allow for future medications and future medical practitioners, over and above what would otherwise have been required at ten thousand dollars.

Fund Management 122 A report of Dr Waters has been served, showing the need for fund management on the basis of the plaintiff's frontal lobe syndrome. I would be assisted by further submissions in relation to fund management and therefore grant leave to the parties to make further submission. 123 I also grant leave to the parties to make further calculations on the findings that I have made and grant leave to approach my associate to deal with it in obiter, either orally or by submission, the matters that I have reserved above and the calculations based upon the findings that I have made.

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