Hanna v Uniting Church in Australia Property Trust - [2010] NSWSC 293 - NSWSC 2009 case summary — Zoe

NSWNSWSC

Hanna v Uniting Church in Australia Property Trust

[2010] NSWSC 293

Supreme Court of NSW|2009-09-22|Before: Hislop J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2009-09-22

Before

Hislop J

Catchwords

Common law - personal injury - school camp - no breach of duty.

Source

Original judgment source is linked above.

Catchwords

Common law - personal injury - school camp - no breach of duty.

Judgment (83 paragraphs)

[1]

Introduction 1 The plaintiff, who was born in May 1985, was a year 10 student at the Methodist Ladies College, Burwood (MLC) when, on 6 February 2001, whilst participating in a year 10 school camp organised by the second defendant, she fell when hiking in bushland, sustaining injury to her right ankle. Consequent upon that injury, the plaintiff developed a condition of complex regional pain syndrome type 1 (CRPS) in the right leg which, she alleges, has caused her ongoing pain and disability. 2 The plaintiff has sued the first defendant, as owner of the school and having the care, control and management of students, teachers and staff, and the second defendant, as organiser of the camp, for damages for negligence in relation to the injury and its consequences. The plaintiff also sues the first defendant, in contract, for breach of an implied term to exercise reasonable care and skill to ensure the plaintiff's safety whilst at school or attending activities arranged for the students. 3 The plaintiff, in her amended statement of claim filed on 16 November 2007, alleged the defendants were at fault, essentially, in directing the plaintiff to hike in dangerous conditions and in failing to take reasonable care of her following injury. In opening the plaintiff's case, senior counsel confined the claim to the following particulars of negligence: "(e) Failed, following the Plaintiff slipping and sustaining injury, to provide any or any adequate first aid or medical treatment for the Plaintiff.

[2]

[39]

(e) Back at the base camp, the plaintiff's condition was very uncomfortable. She was still in distress and unable to walk. Ms McCormack piggy-backed the plaintiff to and from the bathroom and to and from dinner. She had no recollection of assisting the plaintiff to go somewhere to seek further assistance. She was not present when a group of girls approached one of the teachers and asked for a bandage or a Panadol. On the following day, there was a bicycle ride, which the plaintiff went on, although she was still in pain and could not ride the bike. Accordingly, she was put in the back of the bus. Ms McCormack could not remember whether someone else then rode the bike for her. The plaintiff went on a half hour walk, but Ms McCormack could not remember whether there was any assistance given to her during that half hour. She did not recall the plaintiff being involved in any other activity. She did not believe the plaintiff travelled back to school with the rest of the group. On the last day, the group was cleaning up the campsite, picking up rubbish and that sort of thing. The plaintiff's condition at that time was "poorly". 9 Ms McCormack was effectively cross examined and conceded she might be a bit hazy on some details, that she did not know how long the walk was and it was possible it might have been 11 kilometres, that her times were probably wrong. She agreed her evidence that the injury occurred two hours after the bushwalk commenced was wrong and that lunch occurred at midday and the injury was half an hour before. When asked why she had said the further walk took up to six hours, she said she had guessed. 10 Mrs Mugridge, a school friend of the plaintiff, gave evidence as to her observations of the plaintiff at the camp. However, as the plaintiff and Mrs Mugridge were in separate groups, Mrs Mugridge's evidence was of little assistance. 11 The plaintiff's mother gave evidence the plaintiff had phoned her from the school saying that she was home from the camp and had hurt her ankle at camp. Her mother picked her up from school. When she did so, she found the plaintiff "couldn't walk basically". She recalled looking at the plaintiff's ankle when she first saw her and that "it was cold" and "blue, and it was just different from the other foot. There was significant differences."

[52]

(l) On the following morning Ms Edwards asked the plaintiff how she was and she said her ankle was sore but she was fine. The plaintiff was limping but not much. Ms Edwards did not recall the walk that morning. She saw the plaintiff in a car but did not see her on a bike. Ms Edwards left the camp that day after lunch. Mr Woodland also asked the plaintiff how her foot was on the next morning. He too observed she was limping slightly. She made no complaint of excruciating pain. 14 There are numerous conflicts in the evidence. In considering those conflicts, it must be borne in mind that the evidence was given many years after the events occurred, generally the witnesses had not been required to recall those events until six or seven years after their occurrence and there were no contemporaneous accident or injury reports or witness statements available. The second defendant had a protocol for recording injuries but the documents had either not been completed or had been lost, I am unable to say which. 15 In those circumstances, the defendants did not suggest that the plaintiff was lying to the Court, although it was suggested that her evidence was unreliable by reason of the passage of time and a tendency to exaggerate and confuse the dates when various symptoms were manifest. 16 Ms McCormack's evidence appeared exaggerated and she was prepared to guess at answers when uncertain. I did not feel that I could rely upon her evidence unless it was corroborated from other sources. 17 Messrs Woodland and Byrne are no longer employed by the first and second defendants respectively. Ms Edwards remains employed by the first defendant. The defendants submitted their witnesses had no reason to lie. Plaintiff's senior counsel however suggested that they had an interest to defend their actions at the relevant time. Ms Edwards, Mr Woodland and Mr Byrne presented as mature, responsible persons. In my opinion they were doing their best to assist the Court by providing their honest and best recollection of relevant events albeit their recollections on some matters were uncertain and, in the case of Mr Byrne, non existent. Senior counsel for the plaintiff expressly accepted Mr Woodland was a mature, responsible teacher. He did not suggest Ms Edwards or Mr Byrne were other than mature responsible persons.

[57]

The period between the injury and the first examination of the ankle 24 The plaintiff submitted the defendants were negligent because "it took half an hour until she was examined and in that time she had been required to continue walking." It was alleged this failure to treat caused the CRPS, made it worse, or, at least, caused the plaintiff to suffer more pain in the ankle. 25 The plaintiff gave evidence that approximately half an hour elapsed between when the teachers reached her and lunch, at which time her ankle was examined for the first time. She did not remember how long after the fall the teachers reached her. She was by then "hobbling" along the track and continued to do so until lunch. Ms McCormack also said lunch was taken half an hour after the injury. 26 This version differs from that of the defendants who said the injury occurred after lunch. Ms Edwards said she came across the plaintiff on the track. The plaintiff told her she had hurt her ankle "so we stopped and then the instructor looked at her ankle". 27 Mr Woodland said he came upon the plaintiff sitting by the side of the track. He said he had a recollection of Mr Byrne examining the plaintiff's foot just after the injury had happened. He was asked in cross examination if 20-30 minutes elapsed before there was an examination of the ankle. He responded "I would say that is a little long. Maybe ten minutes, five minutes, because the group is, sort of, spread out and then by the time word got out that someone's injured and the group came back or we caught up to the group, and the group, sort of, met as a whole, that's when the first aid inspection would have occurred." 28 The plaintiff's evidence as to time conflicts with the evidence of Ms Edwards and Mr Woodland. It also differs from what she told Dr Begg (15 minutes from injury to getting boot off and examined) and Dr Bodel (kept walking 15-20 minutes after fall till lunch). 29 In my opinion, it is more likely than not that some 5-10 minutes elapsed whilst a message was got to Mr Byrne at the head of the group and he returned to the plaintiff and examined her foot. This was necessary and not unreasonable. It is more likely than not the plaintiff was not walking during the period she was awaiting the arrival of Mr Byrne. 30 In my opinion, there was no breach of duty by the defendants in relation to this period. 31 There was also no direct evidence that the alleged breach by the defendants during this period would have been causative of any compensable harm to the plaintiff.

[76]

The period from the return to camp to the end of camp 46 There was evidence the plaintiff was helped to the shower and the dining hall. There was evidence she sought and obtained a Panadol, probably after a short delay when the first teacher asked was unwilling or unable to meet the request. The sick bay was full. There was evidence from Ms Edwards that she checked the plaintiff who, at the time, had her foot bandaged, was using an ice compress and had the foot raised whilst laying in bed. I accept this evidence. 47 The evidence of the next day was somewhat scant. Ms Edwards and Mr Woodland each gave evidence they saw the plaintiff in the morning, asked how she was and were told the ankle was still sore but she was well. Ms Edwards left the camp at lunch time. 48 There were activities arranged for the girls that day comprising a walk, a bike ride and using a flying fox. The plaintiff gave evidence she wanted to stay at the camp and it was her decision to bike ride but she found it too hard. Similarly her participation in the walk. On each occasion, as soon as she indicated she could not participate in the activity she was put in the back of the support vehicle. The plaintiff participated in the flying fox as it involved upper body strength only. 49 On the following day the plaintiff said she was chastised for not participating fully in the clean up of the camp and her request for an ice compress was refused as everything had been packed up for the trip back to school. 50 I do not accept that the plaintiff engaged in the activities which she did because she was "encouraged" in a coercive way to participate. The plaintiff, in my opinion, engaged in these activities voluntarily. The degree of activity was not inappropriate - see Dr Stephens' opinion and the treatment at Mona Vale Hospital. I do not accept the plaintiff was suffering excessive pain during this period. Nor do I accept that reasonable care demanded that the plaintiff be required to leave the camp early.

[77]

Conclusion 51 In my opinion, the plaintiff has not established any breach of the duty of care or of the implied term of the contract so far as the first defendant is concerned. Neither has she established breach of duty on the part of the second defendant. 52 If I was in error and a breach of duty was established, it would become necessary to consider the issue of causation. In my opinion the plaintiff's case would fail on this ground also for the reasons which follow. 53 The plaintiff's case on causation is put in three ways. These are discussed hereunder. 54 It was put that the whole of the loss and damage suffered by the plaintiff was the result of the failure to adequately care for her following the injury. 55 This submission, in my opinion, is untenable. The specialist medical opinion before the Court is that there was a causal relationship between the injury to the ankle on 6 February 2001 and CRPS. Dr Bleasel said - "no doubt caused"; Dr Bodel - "entirely due to"; Professor Cousins - "appears to have been"; Dr Gronow - "highly probable". 56 Senior counsel for the plaintiff invited me to apply the principle in Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 by reference to the presumptive inference which the sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology. 57 However, in my opinion, to so find in the light of the medical evidence would not be open to me. In any event, the only presumptive inference that I would draw from the facts alone is that the CRPS resulted from the initial injury to the ankle. 58 The second way in which the plaintiff's case was put was that causing the plaintiff to walk for an additional five hours and then to be on her feet from time to time whilst back at the camp caused the CRPS to be greater than it otherwise would have been. There is some medical support for this in the evidence of Drs Bodel and Bleasel as well as Professor Cousins. However, each of those supportive opinions is dependent upon a history that the plaintiff walked for five hours following the injury, suffering acute pain. As Dr Bodel and Dr Bleasel were not called to give evidence an alternative scenario based upon the evidence of the defendants was not put to them and it is not known what their opinions would be in that regard. Professor Cousins gave evidence that on the defendants' history he was unable to put the matter any higher than a possibility. 59 The defendants' qualified expert, Dr Gronow, said that, irrespective of the period walking after the injury, it would have no effect on the development and extent of the CRPS. 60 Dr Stephens was of a similar opinion when he said in his report: "I do consider that the nature and extent of any first aid treatment before Ms Hanna left the camp on 7 February 2001 did not influence the outcome and that this outcome would have remained unchanged regardless of the nature and extent of such treatment. It should not be forgotten that the treatment recommended at Mona Vale Hospital by Dr Faery was on similar functional lines. 61 In Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 the Court of Appeal held that a mere possibility was not sufficient to establish a fact on the balance of probabilities. 62 Additionally the plaintiff's argument appears to involve a claim for loss of the chance that the administration of RICE and the forbidding of the plaintiff to engage in activities during the remainder of the camp might have reduced the extent of the CRPS or prevented it from developing further. This argument is not available - Tabet v Gett [2010] HCA 12. 63 It was also submitted the defendants allowed the plaintiff to be on her feet for four/five days. This caused pain in her foot additional to that which would have been attributable to the original injury. The plaintiff was entitled to compensation for the five days of additional pain. 64 In my opinion, this claim would fail as

Hanna v Uniting Church in Australia Property Trust

At a glance

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Catchwords

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Catchwords

Judgment (83 paragraphs)

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Cases Cited (8)