Mattock v State of New South Wales - [2021] NSWSC 1045 - NSWSC 2021 case summary — Zoe

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Mattock v State of New South Wales

[2021] NSWSC 1045

Supreme Court of NSW|2021-05-06

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-05-06

Catchwords

Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420
[2013] NSWCA 311 Phillis v Daly (1988) 15 NSWLR 65 Roads and Traffic Authority v Dederer (2007) 234 CLR 330
[2005] HCA 62 Wallace v Kam (2013) 297 ALR 383
[1980] HCA 12 Wyong Shire Council v Vairy

Source

Original judgment source is linked above.

Catchwords

Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420[2013] NSWCA 311 Phillis v Daly (1988) 15 NSWLR 65 Roads and Traffic Authority v Dederer (2007) 234 CLR 330[2005] HCA 62 Wallace v Kam (2013) 297 ALR 383[1980] HCA 12 Wyong Shire Council v Vairy

Judgment (110 paragraphs)

[1]

Solicitors: Stacks Goudkamp (Plaintiff) McCabe Curwood (Defendant) File Number(s): 2018/190832 Publication restriction: Nil

[2]

table of contents Judgment Evidence The plaintiff Lay witnesses The defendant's expert on liability The medical experts Economic loss The plaintiff's evidence Pre accident The school records (Ex 1) Rugby League experience The accident PE or PASS? The plaintiff's submissions The defendant's submissions Resolution The head knock The first aid office The expert's report on liability After the first aid office At the beach The plaintiff's mother's evidence Did the plaintiff lose consciousness? Pambula hospital (the hospital) The clinical notes of the hospital dated 29 June 2012 Onset of seizures Report of Prince of Wales hospital Liability The pleading framework Particulars of negligence of Mr Blair and/or the staff at the school The defence The evidence on liability The Board of Studies NSW The touch football rules The expert's opinion on liability in relation to the game played in the PE class Resolution The Civil Liability Act Obvious risk Whether the risk of harm was "obvious" Minors - obvious risk The plaintiff's submissions The defendant's submissions Resolution Was the game a "dangerous recreational activity"? Significant risk of harm The defendant's submissions Resolution Materialisation of obvious risk Section 5I The defendant's submissions Resolution Duty of care Breach of duty Breach of duty The defendant's submissions Resolution Causation Neurologists' joint report and concurrent evidence The issues where the neurologists do not agree (i) Was the plaintiff rendered unconscious by the head knock? (ii) If the plaintiff suffered a mild to moderate traumatic brain injury and suffers seizures as a result of the head knock (iii) Medical literature (iv) Post traumatic epilepsy or general epilepsy? (v) Was the plaintiff predisposed to his condition? Resolution Result Damages The neuropsychologists' report dated 2 February 2021 Psychiatrist's report Post accident Jordan Parkes - the plaintiff's partner The plaintiff's work history after the accident Chris Steiner The plaintiff's employment at Mitre 10 Non economic loss The defendant's submissions Resolution Past out of pocket expenses Future out of pocket expenses Future medication and medical consultations Consultations with neurologist Consultations with general practitioner The defendant's submissions Resolution Neuropsychologist consultations Resolution Future care The occupational therapists' joint report Domestic care Past domestic care Future domestic care Resolution Future equipment Occupational therapy Resolution Epi-Assist Past economic loss The plaintiff's submissions The defendant's submissions Resolution Fox v Wood (1981) 148 CLR 438 Past superannuation Future economic loss Future economic loss The defendant's submissions Resolution Result Costs Judgment There be judgment for the defendant. The Court orders: SCHEDULE OF DAMAGES

[10]

The school records (Ex 1)

He says that he enjoyed school and learning. In year 7, he says that he was presented with academic awards for achieving first place in language, and second place in maths and science.
The school documentation, which includes Year 7 Naplan records, indicates a different picture. The plaintiff performed around the school and national average in reading and numeracy. He performed below average in language conventions and writing and his spelling was significantly lower than the national and school average (T56.38-47).
In cross examination, the plaintiff admitted that his school record included some disciplinary issues. Some examples of the disciplinary issues he was cross examined upon are as follows.
On 20 November 2010, the plaintiff was suspended for inappropriately aggressive behaviour and verbally harassing a student and then punching the student (T56.23-28).
In August 2011, a demerit card was issued for failure to follow teaching instructions followed by defiance and insolence. It was reported that the plaintiff made sarcastic a comment to the teacher "you are a fucking good teacher" (T54.1-11). Further letters of unsatisfactory progress and concern were sent to the plaintiff's mother in October 2011 (T54.28-49).
On 22 June 2012, a further demerit card was issued. It records as follows: "Daniel exploded: "are you fucking kidding?" He also called me "an idiot". In re-examination, the plaintiff gave the following evidence regarding this outburst at T66.1-17: "Q. That on 22 June 2012, you told a teacher or said to a teacher "Are you fucking kidding?" and called the teacher an idiot and slammed the door. Why did you do that? A. Because she was picking on me and my friend. Q. And what way? A. I was trying to teach my friend how to do maths in the maths class and she came over and had a go at me for doing it. Q. Can you tell us what she said? A. She said it's her classroom, she's teaching him, I need to do my work. I'd already finished my work and then I was trying to teach him how to do maths. Q. Why were you trying to teach him? A. Because she wasn't teaching him. She was teaching the whole class and he needed personal help."
While I accept the plaintiff's explanation the outburst was not wise, these examples demonstrate that the plaintiff was displaying bad behaviour at school before the collision.
The plaintiff attended an automotive studies course at Bega TAFE during his final years of school, but his schoolwork was poor. On 27 August 2014, his school records indicate that the plaintiff had not attended school since 26 May 2014.
After school hours, the plaintiff worked part time at a fish and chips shop for about 2½ years. During the holiday season, he worked fulltime 7 days per week. During this time, the plaintiff did not earn more than the minimum amount needed for tax purposes.
Prior to the accident, the plaintiff was living in the family home with his mother. After school hours he would help out around the home. He says that he would bring in the groceries, help with the cooking and clean his room. He would mow the lawn which took about 4 hours per week and cut down trees and split firewood every day after school for about 2 to 2½ hours. He helped with home maintenance and cleaned the cars about one or twice per month for 2-3 hours per car.
Prior to the accident, the plaintiff says that he received the school's Sportsman of the Year Award.
He says that he enjoyed mechanical pursuits when he was younger, including automotive pursuits. He did metal work at school because he was good with his hands. He considered that it would be useful to be able to do physical work in the mechanical setting.
It was the plaintiff's intention to complete the Higher School Certificate, albeit he left school in year 11. Once he graduated from high school, he intended to undertake a Bachelor of Mechanical Engineering at the University of Wollongong. After obtaining this degree, he says that he intended to work as a mechanical engineer, including possibly working for the mines. He knew that there was a lot of money to be made with the fly-in/fly-out type of work that was available, and he had members of his family who did that sort of work in the mines in Queensland.
If the plaintiff did not obtain the requisite ATAR grade to qualify for entry into university, his alternate plan was to undertake bridging courses at night in order to qualify for university.

[11]

Rugby League experience

The plaintiff had played rugby league from a young age, playing his first game when he was 9 years old (T.30.20-25).
He represented his school in Group 16 in the rugby league competition and played on the wing, centre and fullback.
When he was 15 he played in the Under 18s competition. At 16 he played reserve grade for the Eden Tigers.
At the time of the accident, the plaintiff was halfway through a rugby league season, playing under 18s for Eden Tigers as a winger or fullback (T30.25-35). Zachariah ("Zac") was also playing in this team (T80.1-16). After the collision, the plaintiff continued playing rugby league for Eden for the rest of the season. He played reserve grade for Eden the following season (T33.40-34.10). The plaintiff gave the following evidence in relation to his experience with balls kicked high in the air (T30.33-50; T31.48): "Q. As a winger or a fullback, you, on many occasions playing tackle rugby league on a Saturday, had balls kicked high to you? A. Yes. Q. It was your job to catch them? A. Yes Q. That would happen in two circumstances, one, when you were on attack and you would chase the ball through to try and catch it and regain possession? A. Yes. Q. And score, hopefully? A. Yes. Q. Or in defence when someone would put up a high ball in the hope that they could come through and catch it? A. Yes. Q. You had been coached, for your Saturday rugby league games or Sunday rugby league games, to jump for the ball to contest? A. Yes. Q. Had you been coached to call for the ball, put a name on it? A. Not in games. Q. Was it your practice to call for the ball if you were going to jump for it? A. No. Q. In any event, on numerous occasions in tackle games of rugby league on a Saturday or Sunday for Eden, you had contested high balls. A. Yes. Q. You also played for the zone representative rugby league? A. Yes. Q. Again as a winger or fullback? A. Yes. … Q. Had you played any Australian Rules at school? A. Yes. Q. Did you play that as a representative thing for the school or in class? A. It was like gala days. Q. In those games you had been taught the concept of marking the ball or catching it? A. Yes. Q. And contesting the ball in the air? A. Yes."

[12]

The accident

Both the plaintiff and the defendant, in written submissions, highlighted the evidence that they say supports their case. I have included this evidence in order to make my factual findings.
On the 29 June 2012 at about 2.40 pm during (in what I will neutrally describe at this stage, as "the physical activity class"), a head knock (sometimes referred to in the decision as a collision) occurred between the plaintiff and Callan Sinclair ("Callan") The class was under the supervision of Mr Blair, an experienced physical education teacher who was also acting as the referee. It was the last period of the day.
The recollections of the witnesses vary. It is in dispute whether the class was a Physical Education ("PE") or Physical Activities and Sports Studies ("PASS") class.
It is the plaintiff's evidence that the accident occurred during a mixed gender PASS class containing the top graded students (T29.5-30.5). During examination in chief, Zac gave evidence that there were boys and girls involved in this game (T79.10). Callan's evidence was that he was in the same Year 9 PASS class as the plaintiff in 2012 which was taught by Mr Blair.
During cross examination, the plaintiff described the game as touch football with added elements from rugby league. This included using six phases of play and the use of kicking on the fifth phase (T28.20-28.45). He later agreed with the definition of the game as 'rugby league without tackling' (T30.15). In cross examination, Zac stated that the game played was a hybrid game of touch football and rugby league (T82.20-82.35).
It is Mr Blair's evidence that on the afternoon of 29 June 2012 he ran a 'Hybrid/Creative Games' PE class for a group of Year 9 students. Hybrid/Creative Games is a unit in the PE program which involves mixing the skills and rules of different games such as AFL, soccer, NRL, touch football, rugby union or league into a new game (the hybrid game). There were approximately 28-30 male students in the Year 9 class. The plaintiff was in this class.
When asked during cross examination, whether there were any girls in this class, Mr Blair stated that he was reasonably positive that there were no girls present. This was because PE classes, unlike PASS classes, only contain one gender. To Mr Blair's recollection, this was the highest graded boys Year 9 PE class (T130.5).
It is common ground that Mr Blair's normal practice was to start the game by having a high ball kick-off.

[17]

The head knock

On the day of the accident it is common ground that Zac started the game with a high ball kick-off. The plaintiff went running after the ball. Both Callan and the plaintiff jumped up to intercept the ball to gain possession for their respective team. Both their heads collided when they were running at significant speed. The plaintiff felt Callan's teeth going into his left temple.
What happened next is also in dispute. The plaintiff deposed that he was knocked unconscious and when he awoke several minutes later, Mr Blair was present. His evidence is that there was blood going down his cheek, he was concussed and disorientated. I accept there was blood going down his cheek.
Callan in his evidentiary statement described the incident a "nasty collision" and said that he was also knocked out for a short period of time. He recalls that the plaintiff's injuries were worse than his, but he cannot remember how long they were on the ground.
During cross examination, Mr Blair gave evidence that he was 15-20 metres away from the collision when it occurred. There was only a short period of time that elapsed between when the head clash occurred and when he attended the vicinity of the accident (T134.45-T135.10).
During cross examination, the plaintiff described his memory of events following the collision as partial or incomplete (T34.40-T35.15). He did not recall Mr Blair conducting any assessments of him following the collision (T36.5-40).
Mr Blair's evidence is that he assessed the plaintiff to check for concussion and a possible head injury. To assess the severity of the plaintiff's head injury, Mr Blair used a process called "TOTAPS" (talk, observe, touch, active movement, passive movement and stand) (T137.45). He was qualified in first aid. He stated that, through this qualification, he had some idea of what was happening (T131.15). It is Mr Blair's evidence that the plaintiff was standing up when he conducted these tests. He asked the plaintiff to close his eyes (T135.35). As part of this TOTPAS process, Mr Blair says that he asked the plaintiff a number of questions to determine how coherent he was, whether he was aware of where he was and what had happened. These questions may have included what time of day it was and what field they were playing on (T130.40). The plaintiff answered these questions and was oriented as to where he was (T130.45).
As part of this assessment process Mr Blair performed further tests which he says can be indicative of serious head injury (T130.20). One of these tests involved asking the plaintiff to close both eyes. He then tapped above one of the plaintiff's eyes for him to open that eye. When the plaintiff opened that eye, he could then check to see if his pupil was fixated or whether it adjusted according to the amount of light that went into his eye. Mr Blair also recalls that he may have checked the plaintiff for tracking. This involves moving his finger across the plaintiff's eye and observing if the plaintiff's pupil follows his finger (T130.25-30).
After performing these TOTAPS assessments, Mr Blair was of the opinion that the plaintiff was dazed but not seriously injured (T132.20). He also decided that the plaintiff should not continue playing the game and should be observed in another environment, namely the first aid office at the school (T137.45). He did not recall any blood on the plaintiff's temple following the collision (T137.25).
Following the collision, Mr Blair requested that Zac and Bradley Cole (Brad) assist the plaintiff to the first aid office which was "a couple of football pitches away". Brad assisted the plaintiff to the first aid office and remained there for a short time before being sent back to class. It seems that Brad carried the plaintiff's bag to the first aid office. It is the plaintiff's evidence that he had to lean on Zac because he could not balance and could barely stand on his feet. Zac's evidence is that he was not at school that day. So it may be that Zac's memory is incorrect or more likely it was another pupil who assisted the plaintiff to the first aid office. However, nothing turns on this factual inconsistency.

[18]

The first aid office

When the plaintiff arrived at the first aid office, he says that the first aid officer, Ms Cocks told him that he could just wait and catch the bus home as there was only 20 minutes left until the end of the day. It is common ground that Ms Cocks did not conduct any concussion tests. The plaintiff's evidence is that he was very drowsy, nauseous and in a great deal of pain. He felt like he was going to throw up. Despite this, he says that Ms Cocks did not seem concerned about his injuries, did not call an ambulance, nor did she attempt to call his mother. It is common ground that Ms Cocks did not call an ambulance. The rest of the plaintiff's account is account is disputed by Ms Cocks.
Ms Cocks' evidence in her statement (Ex A(1), Tab 5) is that she recalls the plaintiff coming into the office with a friend at approximately 3:00 pm on the day of the incident. The plaintiff had a cut on his forehead and that she took him and his friend into the first aid room.
She recalls that the plaintiff said words to the effect: "I was playing sport and I collided with another student. His tooth hit my head."
She cleaned the cut on the plaintiff's head and put a steri-strip over the cut. There was not a lot of blood from the cut. She believed it to only be a minor incident. The plaintiff did not tell her that he was in pain or that he felt nauseous. He was talking clearly and did not appear to be unwell.
After she cleaned the cut, she recalls saying to the plaintiff words to the effect: "I will phone your mother to come and collect you."
He responded with words to the effect: "You won't be able to get a hold of her. She's out of range."
As the plaintiff's mother was his only listed point of contact, she said to him words to the effect: "Do you know the phone number of someone else I can call to come and pick you up?"
She says that the plaintiff refused to provide her with alternative contact details and then said words to the effect: "I'll be alright. I will get the bus home."
She does not recall if she tried to contact the plaintiff's mother.
Ms Cocks said that the plaintiff seemed to be in a hurry to get home and did not want to stay in the school office. However, the plaintiff says that Ms Cocks insisted that he go home on the bus and that "she was worried about the end of school and wanted me out". In cross examination, Ms Cocks denied that she was worried about the end of school and wanted the plaintiff out. I prefer and accept Ms Cocks' evidence as it is consistent with her belief that the plaintiff's injury was a minor one, he told her that she could not contact his mother as she was out of mobile phone range, which was confirmed by the plaintiff's mother as being true.
Before the plaintiff left, Ms Cocks said words to the plaintiff's friend to the effect: "Can you please take Daniel to the bus stop and make sure he gets on the bus home."
She recalls being satisfied that the plaintiff was okay to travel on the bus home. At that time, he was able to answer questions and did not appear to be dazed.
Ms Cock's evidence is that she would not have let the plaintiff travel on the bus home if she thought it was unsafe and that he had suffered a serious head injury. Because she considered it a minor injury, she did not prepare an incident report in relation to the incident.
In cross examination, Ms Cocks gave evidence that she advised the plaintiff to catch the bus, she requested another pupil to walk him to the bus stop because he was very unstable on his feet. His friend assisted him to the bus stop which was about 200 metres away.
The Particulars of negligence pleaded in the statement of claim in relation to the first aid treatment rendered to the plaintiff are as follows: 1. Failure to provide adequate and appropriate first aid care post-incident exposing the plaintiff to potentially serious consequences. 2. Failure to provide appropriate monitoring and supervision of an injured and/or concussed person such as the plaintiff.

[19]

The expert's report on liability

During the hearing, I disallowed the report of Ken Armanasco dated February 2018 prepared for the plaintiff being admitted in evidence: see Mattock v State of New South Wales (New South Wales Department of Education) (No 1) [2021] NSWSC 477.
The defendant relied upon the expert's report of Mr Meaney. Mr Meaney is a senior lecturer, Associate of the School of Education, RMIT University Melbourne, with special research interest in teacher education, sport psychology, physical and sport education and competitive sports. He has taught the safe practices and technical practical skills involved in the teaching of physical and sport education since 1967. He has provided an expert's report dated 2 February 2021, in which he provides his opinions as to firstly, whether the PE class was conducted appropriately; and secondly, was the first aid response appropriate. He gave evidence and was cross examined.
It is Mr Meaney's opinion that Mr Blair's first aid response was appropriate. Mr Blair checked for concussion. At no stage did he indicate that the plaintiff was unconscious and his assumption is borne out by my earlier findings. He opines that teaching or in any sport generally, if someone is unconscious or non responsive for even the slightest numbers of second, an ambulance has to be called and an ambulance would have been called onto the field if the plaintiff had been unresponsive.
As to the first aid response, Mr Meaney considered that the first aid response provided by Ms Cocks, the first aid officer at the school was also appropriate given that the plaintiff's mother's mobile phone was out of range and the plaintiff apparently refused to give another number. I accept and agree with Mr Meaney's opinion. He has based his opinion upon my earlier findings.
The allegations in the plaintiff's statement of claim that the defendant's failure to provide adequate first aid care post incident exposed the plaintiff to potentially serious consequences and failure to provide appropriate monitoring and supervision of an injured and/or concussed person such as the plaintiff fails.

[22]

The plaintiff's mother's evidence

When the plaintiff's mother arrived at the beach, the plaintiff was sitting with Jake and Billy in Billy's car. She saw that he was injured and bleeding from his head. In cross examination, the plaintiff's mother could not recall who it was who gave her the information regarding the details of how the injury occurred (T104.5-30).
While she was driving the plaintiff to Pambula hospital, she says the plaintiff "passed out on two occasions". She says that the plaintiff told her he could not remember what had happened from when he was injured. When they arrived at the hospital emergency at 5.50 pm, she says that the plaintiff's speech was slurred and he was finding it hard to walk. Her evidence is that the drive from Eden to Pambula is around 11 kilometres and takes about 10 minutes driving time.
When they arrived at the hospital, the plaintiff's mother says that the nurse was "shocked that no ambulance had been called since as this was a clear case of concussion". I think this statement alleged to have been made by the nurse is most unlikely because at that time of triage the plaintiff had not yet been examined by the doctors and the subsequent clinical notes reveal a different picture.
The plaintiff's mother's evidence is that the plaintiff's temple was still bleeding at this time. The hospital staff cleaned it up and put steri-strips over the cut. It is common ground that no head x-rays were taken and that the plaintiff had to stay in hospital under observation for four hours before being discharged.
On 6 July 2012 (a week after the head knock), the plaintiff's mother sent an email to Ian Moorehead, the principal of the school, expressing her concern as to the plaintiff's treatment after the head knock. The plaintiff's mother had been a teacher at the school. She was cross-examined on the content of the email and she admitted that some of what she wrote had come from other sources. The email reads as follows: "…I found my son at the beach, he was obviously concussed his eyes were wide like possums and his speech was slurred and he was not making much sense. He told me he had a head clash at school while playing touch and that he was told by the school staff that he might need stitches in his head and that he might have concussion. I took my son to Pambula hospital straight away. He could hardly walk and looked as if he was drunk by the way he was staggering. The nurse checked him over and asked why hadn't the school called an ambulance for him because it was an obvious case of concussion. We stayed at the hospital for the next 3 hours waiting for them to finish their assessments. They also sent us home with a card so that if, after the stemitil wore off and he began to vomit again, that I could take him straight back to hospital. I appreciate that the office is a busy place but I do not feel that the correct protocol was followed for head injuries, and want to know why my son was allowed to leave the school unassisted when he could not even walk well enough to hop on the bus. He needed to sit in the gutter because he felt like he was going to either pass out or vomit." (the email)
In cross examination, the plaintiff's mother could not recall where or when or from who she obtained the information about the incident she set out in the email. As to how she received the information that the head knock had occurred she gave evidence (at T97.22-26): Q. Whilst you were driving Daniel to the hospital from the beach, can you recall what if anything he said to you about what had happened to him? A. Daniel passed out twice on the way to the hospital and I was shaking him and trying to keep him awake. He didn't really say anything; he couldn't remember what had happened.
Then at T102.11-18, in reference to the contents of the email: Q. You will see, "He told me that he had a head clash while playing touch." A. Yeah. Q. He told you that sitting in Mr Swires' car at the beach? A. I don't remember if he told me that at the beach but I got that information. Q. Yes, from Daniel? A. From Daniel.
At T103.10-14: Q. You record in this statement that he, that is Daniel, isn't it, told me he had a head clash? A. Yeah, but that wasn't till the next day. This statement is seven days after it happened.
At T104.21-29: Q. He was racing to get the ball, clashed heads with Daniel. You see that? A. Yeah. Q. Daniel told you that? A. I don't know if it was my son who told me or if it was Zac who told me because like I said I used to teach at the school and I found out what went on, 'cause my friend - my son's friends used to come over and I wanted to know what happened to him. Q. Sitting here today you don't remember who gave you that piece of information? A. No.
It is my view that the plaintiff's mother's statement is mainly an amalgam based on what she had been told by others.

[25]

The clinical notes of the hospital dated 29 June 2012

This clinical note entry is critical to the neurologists' opinions (referred to later in this judgment).
The clinical notes record (Ex A(3), Tab 52): "1831 hit to l) [left] temple region, felt nauseous but no Loc [loss of consciousness] @ time Now feels unsteady on feet, Speech slow, some ongoing nausea, no memory Loss, vision Ⓝ [normal] says he can't feel over area of blow. Brief sleep en-route to ED…."
The clinical notes also record that the plaintiff's Glasgow Coma Scale at that time was 15/15 (the best achievable outcome).
No head x-rays were taken, and the plaintiff stayed at the hospital under observation for 4 hours. At around 10:30 pm, plaintiff was discharged. His mother "kept an eye" on him over the next 72 hours. The plaintiff slept for most of that time.
As to whether the plaintiff was rendered unconscious by the head knock, I make a finding that he was not, based on the following evidence. The fact that the plaintiff was not rendered unconscious by the head knock is supported by Mr Blair and the contemporaneous clinical notes from Pambula hospital. The clinical notes record that the plaintiff did not suffer unconsciousness at the time of the incident. Also, at the time of the examination the clinical notes of the emergency department indicate that the plaintiff was alert. Although the plaintiff's mother stated that the plaintiff passed out on two occasions, the clinical records indicate that the plaintiff had a "brief sleep" en route to the emergency department.
Further, when the plaintiff was cross examined as to whether or not he lost consciousness the following exchange took place (T 166.33-50): "Q. What I'm suggesting to you is that you were directly asked? A. The trip to the hospital I didn't remember. Q. What I'm suggesting to you is that you were directly asked whether or not you had lost consciousness by the hospital staff, your answer was no. Do you agree or disagree with that? A. Disagree. Q. And if someone's written that in medical records, do you say that's wrong? A. I said I don't know. Q. So, you don't know whether or not you lost consciousness, is that what you're saying? A. No, that's what I was saying. Q. And sitting here today, you still don't know whether you lost consciousness or not do you? A. No."
Hence, I make findings that the plaintiff does not know whether or not he lost consciousness after the head knock. Mr Blair did not observe that either the plaintiff or Callan were rendered unconscious after the head knock. Mr Blair immediately conducted tests to assess the severity of the plaintiff's head knock and concluded that the plaintiff was dazed but not seriously injured. At the first aid office, Ms Cocks spoke to and observed the plaintiff. She formed the opinion that the plaintiff had suffered a minor injury. The only evidence that the plaintiff lost consciousness was from the plaintiff's mother who said that the plaintiff "passed out twice" on the drive to Pambula hospital, but it was recorded in the clinical notes as he had "brief sleep en-route to ED." It is more likely than not that while the plaintiff was not rendered unconscious as a result of the head knock, but I accept that he may have suffered concussion (see Dr Sutton's evidence later in this decision).

[26]

Onset of seizures

There is also a dispute as to when the onset of the plaintiff's seizures first occurred.
The plaintiff recorded in his statement that his first seizure occurred about 8 days after the accident when he was camping with his friends. He had a seizure in his tent (Ex A(1) Tab 4 at [53]). He stated that he suffered another seizure shortly after that in November 2012 (Ex A(1) Tab 4 at [54]).
Despite initially agreeing that his first grand mal seizure occurred a few days after the accident (T23.15), the following exchange between counsel for the defendant and plaintiff took place (T47.15-35): Q. With the camping, just so we're clear about it because I can only work from the records, I have a record from hospital of the 25th of the eleventh 2012, as best as I understand you're telling me, the night before that, you'd been out all night with some friends, and when you got to the Caltex service station to try and get into the restaurant in the morning, you had a seizure? A. I had a seizure once I was in the café, yes. Q. From there, you were taken to Pambula Hospital? A. Yes. Q. Whilst you're at Pambula Hospital [on 25/11/2012], you're asked a series of questions, and one of the things you told them about was that someone had seen you have a fit about three weeks previously? A. Yes. Q. That was when you'd been camping? A. Yes. Q. Had you been out late at night that night? A. Yes.
The plaintiff's admission to the hospital following his seizure at the Caltex service station is recorded in clinical notes dated 25 November 2012 (Ex A(3), Tab 52 at [647]). These notes indicate an episode of head trauma without loss of consciousness approximately five months earlier. The notes also record an episode that had occurred approximately three weeks earlier (ie, 4 November 2012) when it was likely that the plaintiff had a nocturnal generalised seizure while camping with friends.
During this hospital admission dated 25 November 2012 to the hospital, a CT brain study was conducted (Ex A(3), Tab 52 at [651]). No abnormalities were documented.
Dr Reid from Curalo Medical Clinic (the plaintiff's former GP) referred the plaintiff to Dr Mark de Souza, paediatrician at Canberra hospital, who the plaintiff saw on the 10 January 2013. The report from this consultation records as follows (Ex A(3), Tab 50 at [596]): "[the plaintiff] is said to have had 2 seizures... Both events occurred in the early morning after he had been out drinking and had been awake for most of the night. The first episode occurred in a tent and was observed by one of his friends. The second occurred at a restaurant and was described by onlookers as being a 'fit'… the last seizure had occurred 2 months ago, and the first one was a month before that."
It was noted by Dr de Souza that a CT head scan (undertaken at Pambula hospital) showed no structural abnormality and that a trial of Tegretol had led to unacceptable side effects. This history does not refer to an epileptic seizure occurring 8 days after the head knock.
The first time the plaintiff's mother became aware of him having a seizure was after he was hospitalised following the seizure at the Caltex service station. On 1 April 2013 was the first time she actually witnessed the plaintiff having a seizure when he was in the shower. She had to get him out of the shower and call an ambulance (Ex F).
The subsequent hospitalisation on 1 April 2013 is recorded in the clinical notes from the hospital (Ex A(3), Tab 52 at [628]). These clinical notes record that the plaintiff had suffered a seizure while in the shower and he had hit is head. The notes also record that he had suffered two previous seizures and that these past seizures were induced by 'over doing it' and 'drinking and partying too hard'.
During cross examination, the plaintiff agreed that during the initial onset of seizures, it was usually after a night of drinking and not sleeping when they occurred (T48.12-15).
The plaintiff was then referred by his current general practitioner, Dr Rowlands (the GP) of the Curalo Medical Clinic to Dr Andrew Hughes, Neurologist at Canberra hospital.
On 20 June 2013, the plaintiff saw Dr Hughes and was referred for an electroencephalogram (EEG) which took place on 8 July 2013. Again, no abnormalities were found.
During the period, before the plaintiff consulted Dr Hughes on 1 August 2013, he suffered two more seizures. One when he was in the car being driven to a football game (rugby league) and another at 2:30am when he had been up late watching movies (T50.20-40).
Clinical notes from the hospital dated 3 September 2013 indicate that the plaintiff was admitted after having been witnessed to have suffered a seizure (Ex A(3), Tab 52 at [624]). The records indicate that he suffered lacerations on his tongue. These records also indicate that his first seizure occurred in September 2012 and that he had seven seizures since then.
On the 3 January 2014 the plaintiff was hospitalised after he suffered a seizure that caused him to fall off the top bunk of his bed and cut the right side of his head (T49.20). These clinical notes from this admission indicate that he had missed his last three doses of Epilim (Ex A(3), Tab 52 at [616]).
It is not disputed that throughout 2015 and 2016, the plaintiff experienced seizures on average every 2-6 weeks, which he says lasted for 20-30 minutes. As his seizures continued to increase in frequency, and he was referred back to Dr Hughes in June 2016.
On 7 July 2017, the plaintiff was admitted to Shoalhaven hospital due to suffering two more seizures. The initial seizure occurred around 9:30 pm. The second seizure was around 1:00 pm on that day. Following the second seizure, the plaintiff fell to the ground which caused his two lower teeth to be loosened. A CT head scan was undertaken in which no abnormalities were detected. The clinical notes state that "if he sleeps for more than one hour, he usually remains seizure free" (Ex A(3), Tab 55 at [721]).

[27]

Report of Prince of Wales hospital

On 3 June 2019, the plaintiff was admitted to Prince of Wales hospital for a review by Dr Robert Morton, a neurology consulting clinician. His notes record (Ex A(3), Tab 46): "HPC [History of presenting complaint] Head injury sustained playing touch football in school -2012. Head to head strike, nil LOC [loss of consciousness] at impact. Reports ongoing dizziness - school bus driver would not allow on the bus as thought to be intoxicated. Walked to beach from bus stop. Texting friend, but mid message 'passed out' on beach (from approximately 3.30pm-5.00pm. … Seizures commenced 1 week following this trauma Significant drinking + sleep deprivation at time of first seizure Associated tongue bite Seen by neurologist and commenced on AED following second seizure … Febrile convulsions around 6 months - 10 seconds in length, associated with fevers … Admitted to neurology ward and video EEG monitoring applied Sleep deprived Nil seizure activity recorded throughout admission Video footage of seizures (from home recorded by partner) reviewed on epilepsy ward round - appears to be generalised epilepsy … Impression: This is likely generalised epilepsy, not related to head trauma sustained in during head collision. … 2. Patient is not to safe to drive … Please follow up with GP. Dr Rob Morton:- to kindly arrange MRI Brain … 6. Patient is not to drive until review with Dr Zentner in 3 months - as per discussion".
Aside from the history the plaintiff gave in his statement dated 16 April 2019 (some 6 years after the collision), 3 June 2019 is the first time the plaintiff has given a history to the medical practitioners about suffering a seizure 8 days after the head knock. What the plaintiff says in his statement as to when his first seizure occurred is inconsistent with the contemporaneous records.
So far as the report, dated 3 June 2019, records that the plaintiff "passed out on the beach (from approximately 3.30 pm-5.00 pm)" that accords with the plaintiff's evidence. However, neither Zac nor Billy witnessed him being unconscious when he says he was. The plaintiff's memory of what occurred at the beach and later repeated to Dr Morton, particularly as to timing is, in my view, unreliable.
The defendant submitted that the objective evidence is that there was a delay of some months before the commencement of seizures. The plaintiff was taken to Pambula hospital on 25 November 2012 after having a seizure at breakfast (at the end of a night out). The history refers to a smaller seizure "a couple of weeks ago". On both occasions, seizures occurred after the consumption alcohol and sleep deprivation.
From the timeline recorded in the medical records, it is my view that it is more likely than not that the onset of the plaintiff's seizures occurred around early November 2012, not 8 days after the incident.
The plaintiff has been diagnosed with generalised seizures, non-traumatic in origin, at the Prince of Wales Hospital Epilepsy Unit by Drs Zentner (neurologist) and De Souza (paediatrician).
Over the years, various medications have been tried by the plaintiff. His says that he ceased taking them because he suffered unwarranted side effects. The plaintiff has had varying periods of being seizure free and at one point achieved a sufficient seizure free period to obtain a driving licence through lifestyle modification and compliance with treatment. The plaintiff in his younger years has elected, up until recently, to go for long periods without taking medication.
It is common ground that in the last few years, the plaintiff has had seizures, on average, once a month (T60.15).
Since he has been in a relationship with his partner Jordan Parkes and more recently now that they have had a baby, the plaintiff is prepared to try new medication and adhere to taking them as prescribed.
I will return to the topic of whether the head knock caused epilepsy and the neurologists' opinions after I have considered liability.

[38]

The expert's opinion on liability in relation to the game played in the PE class

Mr Meaney, the defendant's expert on liability, described the game that the plaintiff was playing as a hybrid game. It included three elements, Australian rules football, NFL and touch football. This accords with my earlier findings.
Mr Meaney's opinion is that the hybrid game played fitted nicely into the PE program at the school and it was part of the Board of Studies in NSW K to 10 framework. It fits into the syllabus and also into the scope and sequence planning of the physical education program. It also fits in with the lesson intentions at the time. In teaching, teachers must state what their lesson intentions are in order to do some evaluation at the end.
When asked by what means was the game commenced, Mr Meaney referred to Mr Blair's written statement that he employed a ball up (this accords with my findings). During the ball up there could be contact but more likely there could be a bump. There were 6 tackles, the team that had possession of the ball had the opportunity to either use a kick to either gain ground, force an error from the opposition, regain the ball, or score a try. He identified that there was a possibility that accidental contact could occur when players were competing for a ball in the air.
Question 2(b) asked Mr Meaney whether the means by which the game commenced was an appropriate activity for the PE class? He answered, in AFL once the ball is bounced and is tapped out, the person receiving the ball from the tap quite often kicks it and this could have been at the commencement of the game. If the ball was put up, a ball up and tapped out, the receiving person in AFL very often kicks it forward.
The only contact between the students involved the high ball kick and where a defensive player may tap an offensive player, constituting a tackle, one of a series of 6. Every set of 6 tackles that a team had possession, they had the opportunity to use a kick to gain ground, force an error from the opposition, regain the ball or score a try.
Accidental contact was a possibility when students were competing for a ball in the air as a result of a ball up, a kick or a pass. Mr Meaney believes that Mr Blair managed and conducted the PE class game appropriately.

[39]

Resolution

As previously stated, I accept that a high ball kick off does not accord with the Touch Football Association Playing Rules referred to earlier in this judgment but the game actually played in the PE class was a hybrid game. It was not a game played under the auspices of the Touch Football Association.
I agree and prefer Mr Meaney's evidence based on his knowledge and experience. He is a senior lecturer at RMIT University Melbourne, with special research interest in teacher education, sport psychology, physical and sport education and competitive sports. He has taught the safe practices and technical practical skills involved in the teaching of physical and sport education since 1967.
He has experience with the Physical Activity Syllabus and practical experience with safe practices and technical practical skills involved in the teaching of physical and sport education. I accept and prefer his evidence that the hybrid game played fitted nicely into the PE program at the school and it was part of the Board of Studies in NSW K to 10 framework and it also fits into the syllabus and also into the scope and sequence planning of the physical education program. It also fits in with the lesson intentions at the time. In teaching, teachers must state what their lesson intentions are in order to do some evaluation at the end.
He accepts that during the high ball up there could be contact but more likely there could be a bump. There were 6 tackles, the team that had possession of the ball had the opportunity to either use a kick to either gain ground, force an error from the opposition, regain the ball, or score a try. He identified that there was a possibility that accidental contact could occur when players were competing for a ball in the air.
Accidental contact, he says, was a possibility when students were competing for a ball in the air as a result of a ball up, a kick or a pass. He believes that Mr Blair managed and conducted the PE class game appropriately. The hybrid game played in the PE class comprising of the top graded student, some of whom experienced and skilled rugby league players (this also accords with my earlier findings). While I accept that there was a possibility that accidental contact could occur when players were competing for a high ball at kick off, I find that the hybrid game was conducted in a safe manner and Mr Blair conducted the game appropriately.

[42]

Whether the risk of harm was "obvious"

In determining the application of s 5L in this case, it is first necessary to consider whether the risk undertaken by the plaintiff was "obvious" under the Civil Liability Act.
Sections 5F, 5G, 5H and 5K read: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. 5K Definitions In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."

[43]

Minors - obvious risk

The plaintiff was in Year 9 and 15 years old at the time of the collision He is considered in law to be a minor. The PE class in which he participated was a compulsory one.
In Holroyd City Council v Zaiter [2014] NSWCA 109 ("Zaiter"), Hoeben JA (with whom Emmett and Gleeson JJA agreed) referred to the duty of minors to exercise reasonable care for their own safety. In Zaiter, the respondent was a 9 year old child who was injured when he rode his bicycle into an unfenced drainage channel. Hoeben JA stated at [75]-[76]: "75 Children are in a different category to adults. The foreseeability issue relates to a class of persons, not to an individual. The fact that one child might behave in a conservative manner does not mean that all children will or should be expected to do so. In any event, the appellant understood the particular vulnerability of children and that is why when identifying the risk of harm in documents to which reference has been made, it specifically identified the class which it identified as being at risk as children. 76 As already indicated, the behaviour of one child says nothing about the behaviour of children generally. It is notorious that immaturity is a feature of childhood and that normally the younger a person, the less mature that person is. That lack of maturity in children is often demonstrated by unsafe or, more often, unthinking behaviour. …"
So far as obvious risk is concerned, Hoeben JA in Zaiter had this to say: "90 … The materialisation of the "obvious risk" in the submission depends upon the risk being obvious to a reasonable person. In this case, the standard of reasonableness was that to be expected of a 9 year old boy. …"
I will return to this topic shortly. The standard of reasonableness is what is to be expected of a 15 year old boy in the position of the plaintiff.
In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 ("CG Maloney"), Bryson JA observed at [173] that "[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated".
The question for this Court is whether the risk was one which, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. That was the position at common law as stated in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126]-[129] ("Wyong Shire Council"); Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 per Tobias JA at [161] ("Vairy"), and continues to apply under the Civil Liability Act: see Tobias JA in Jaber v Rockdale City Council [2008] NSWCA 98 ("Jaber").
"Obvious", under its ordinary meaning and in s 5F(1), means something which is "clearly apparent or easily recognised or understood": see Jaber at [35]. Whether a risk is obvious is a matter to be determined objectively.
In Vairy, as stated in Jaber, Tobias JA provided further clarity to this concept at [162]: "Thus in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury."
Applying this reasoning, the condition would be that the plaintiff is compulsorily required to play in the PE class that involves a contested high ball kick off. Under such a condition, the risk would be that contesting a high ball kick might result in injury.
As such, the risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that contesting a high ball kick with another individual inevitably brings with it the risk of injury.
Under s 5G, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves, on the balance of probabilities, that he or she was not aware of the risk. A person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk (see Emmett JA at [202] in Collins v Clarence Valley Council [2015] NSWCA 263).

[45]

The defendant's submissions

In this case, "a reasonable person in the position of the plaintiff" means a young person in year 9 who was a skilled and experienced at playing Rugby League and/or Australian rules. It would have been obvious to a reasonable person in the position of the plaintiff that there was the possibility of a collision involved in playing the game (even if there was a somewhat low probability of that occurring).
The possibility that the plaintiff may be involved in a collision (involving a head clash) while competing for the ball after a kick was an obvious risk of the activity in which he was engaged. That risk was obvious within the meaning prescribed to those terms by s 5F of the Act.
The plaintiff collided with Callan on the other team while attempting to catch the football. The clash suffered from the collision was the result of the materialisation of an obvious risk of the activity.
In considering s 5K, both the likelihood of harm and the magnitude of injury is relevant: see Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17 at [28] (Falvo). The "risk of physical harm" may be "significant" if the risk is low but the potential harm is catastrophic. The "risk of physical harm" may be "significant" if the likelihood of the occurrence and the harm is more than trivial: Falvo at [31].
The risk of an injury included a head clash arising from a collision between two or more players competing for the football. The risks associated, as a result of a collision, have a potential catastrophic effect that are not trivial in nature.
It would have been obvious to a reasonable person in the position of the plaintiff that there was the possibility of a collision involved in playing the game (even if there was a somewhat low probability of that occurring). The possibility that the plaintiff may be involved in a collision (involving a head clash) while competing for a ball in the air (whether it was following a ball up, kick or punt) was an obvious risk of the activity in which he was engaged. That risk was obvious within the meaning prescribed to those terms by s 5F of the Act.
The plaintiff collided with Callan Sinclair on the other team while attempting to catch the football. The head knock suffered from the collision was the result of the materialisation of an obvious risk of the activity.
The defendant is therefore not liable for any harm suffered by the plaintiff pursuant to s 5L.

[46]

Resolution

The plaintiff was a very skilled, experienced and talented rugby league player who played above his grade in rugby league at the time of the head knock. The standard of reasonableness is what is to be expected of a 15 year old boy who was a skilled experienced and a talented rugby league player.
The plaintiff had played rugby league since a young age, playing one game under nines and then again at under 13s (T30.20-25). At the time of the incident it was about halfway through the rugby league season when he was playing under 18s for Eden Tigers as a winger or a fullback (T30.25-35). He had experience playing rugby league and competing for high balls (T30.45-50).
This evidence was corroborated by the evidence of Mr Slater in cross examination where he gave evidence (T80.14; T81-9) that at the time of the head knock the plaintiff had played half a season of rugby league with the plaintiff leading up to the accident. He played in the position of either winger or fullback. The plaintiff's position was either a winger or a fullback. On a weekly basis Mr Slater would put high balls towards the opposition wing and fullback and the plaintiff would attempt to go through and catch them. Those high balls were contested high balls. From time to time there would be collisions in the air when this was happening. Mr Slater witnessed the plaintiff being tackled and making tackles. The other side would put up high balls and the plaintiff would have to try and catch them.
Here "a reasonable person in the position of the plaintiff" means a young person in year 9 with experience playing mainly rugby league experience playing Australian rules. Accidental contact was a possibility when students were competing for a ball in the air as a result of a ball up.
Whether it was a PASS or PE class, it was comprised of the more highly skilled and athletically able students. The plaintiff was a skilled rugby league player. Namely, those more highly skilled athletic students were in the class, as was the plaintiff who was in that class in at the time of the incident. (T29.3-T29.10).
While I accept that playing PE was compulsory and the plaintiff and was aged 15 years at the time, with his skill and experience in playing rugby league, particularly as to kicking and catching high balls in the air, he would have been able to make a considered decision based on his experience whether it was safe for him to contest the ball or if it was not safe to back off. He decided that it was safe for him to contest the high ball, a person in the position of the plaintiff would not have thought that the risk was obvious.

[47]

Was the game a "dangerous recreational activity"?

The defendant relied upon the operation of Part 1A, Division 5 (Recreational Activities) of the Civil Liability Act. Section 5J provides that Division 5 only has application if the plaintiff was engaged in "recreational activity". It is under this division that the defendant has pleaded that pursuant to s 5L, it is not liable to the plaintiff as his injury resulted from the materialisation of an obvious risk.
The defendant bears the onus of demonstrating that the relevant activity in s 5K fits into any of the above definitions: see Falvo at [122]-[123] (Ipp and Tobias JJA agreeing).
So far s 5K is concerned, Ipp JA (with Hunt AJA and Adams J agreeing) in Falvo had this to say: "28 In my view, the definition of "dangerous recreational activity" in s 5K has to be read as a whole. This requires due weight to be given to the word "dangerous". It also requires "significant" to be construed as bearing not only on "risk" but on the phrase "physical harm" as well. The expression "significant risk of physical harm" is coloured by the word "dangerous" and the phrase "significant risk" cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising. 29 The view that a risk is "significant" when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 490. 30 Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury. 31 In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the "risk of physical harm" may be "significant" if the risk is low but the potential harm is catastrophic. The "risk of physical harm" may also be "significant" if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the "risk of physical harm" may not be "significant" if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is "dangerous"." 32 Oztag, like touch rugby, is not what is normally understood as a contact sport. Oztag, in fact, is designed to reduce the extent of physical contact that might be experienced in ordinary touch rugby. 33 A "dangerous recreational activity" cannot mean an activity involving everyday risks attendant on games such as Oztag which involve a degree of athleticism with no tackling and no risk of being struck by a hard ball. In my opinion, the trial judge erred in finding that Oztag was "a dangerous recreational activity".
Ipp JA stated at [18] that the risk of physical harm was "significant" if the prospect of the harm occurring lay somewhere between "trivial" and "likely".
In summary, Ipp JA said that "significant risk of physical harm" in the definition of "dangerous recreational activity" had to be read as a whole, in effect, distributively, so as to require not only a significant risk but also a risk of significant injury. Due regard also has to be paid to the word "dangerous". This led his Honour to dismiss the suggestion that Oztag, a sport requiring athleticism but little physical contact and use of a soft ball, was a dangerous recreational activity.

[55]

Breach of duty

Section 5B of the Civil Liability Act sets out the necessary, but not sufficient, pre-requisites for civil liability to arise. Although headed "duty of care", it is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [13] ("Adeels Place").
Section 5B and 5C read: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 5C Other principles In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
The inquiry in s5B of the Civil Liability Act asks what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.
Remembering here that the plaintiff was a minor who is a reasonable person in the position of a 15 year old who is skilled and experienced in rugby league, in normal circumstances the expectation that the plaintiff would exercise reasonable care goes not merely to the assessment of breach of duty, but is "a specific element contained, as a matter of law, in the scope of the duty of care": see Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 ("Dederer") at [45] per Gummow J.
The effect of s 5C(b) of the Civil Liability Act is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301.
The test is always whether the plaintiff, and in this case a minor, has proved that the defendant, who is owed a duty of care, has not acted in accordance with reasonable care: see Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. The fact that there were measures which could have been taken to avert or diminish the risk that materialised do not establish breach of duty: see Thornton v Sweeney [2011] NSWCA 244.
A plaintiff must fail in an action for negligence framed in terms of a failure to take precautions, unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: see Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [50].
The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
In order to succeed, the plaintiff must show that it is more probable than not that, but for the breach, the "particular harm" which materialised would not have been suffered. This involves two elements: "factual causation" and "scope of liability": see Adeels Palace at [42]; Wallace v Kam (2013) 297 ALR 383; [2013] HCA 19 at [12].
Determination of factual causation under s 5D(1)(a) is a statutory restatement of the "but for" test of causation. That determination is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace v Kam at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].
The determination of "scope of liability" involves a value judgment (Wallace v Kam), as does the determination of "factual causation": see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].
The requirement under s 5D(1) for the plaintiff to demonstrate "factual causation" and "scope of liability" do not include the common law concepts of material contribution or increase in risk: see Woolworths Ltd v Strong [2010] NSWCA 282 ("Woolworths") at [47]-[48]. Rather, causation requires a determination that "the negligence was a necessary condition of the harm".
The application of s 5D(2), an exceptional case, requires evidence: see King v Western Sydney Local Health Network [2013] NSWCA 162 per Hoeben JA at [155] It also needs to be raised on the pleadings: King per Ward JA at [222]. Here, the plaintiff has not submitted that this is an exceptional case, nor did he adduce any evidence to support the proposition. Hence, s 5D(2) is not applicable.

[56]

Breach of duty

While a school has a duty of care in relation to its students, a school is not absolutely liable for injuries sustained by pupils while they are under the supervision of their teachers. A school is not an insurer of its pupils: see Kondrajian.
Where an injury is caused by an unfortunate occurrence which reasonable precautions could not have prevented, no breach of duty will have occurred. The mere fact that a serious injury or death may occur while children are playing a game at school will not automatically result in a finding that a breach of duty has occurred. The fact that such a devastating result was foreseeable will not necessarily mean that liability is established (Kondrajian at [61]-[62]).
Further, in determining whether reasonable steps were taken to prevent injury occurring in a game are factors such as: the benefits of the game, the size of the risk involved, the probability of those risks materialising, the degree of possible inadvertent conduct on the part of the participating children, the level of those children's skill (Kondrajian at [65]).
Every sport or physical activity carries with it a foreseeable risk of injury. Yet society accepts that it is desirable for children to acquire skills in sport and physical activities. Games and activities that involve potential collision are ordinarily part of the school curricula and this is so despite the fact that it is foreseeable that participation in the game, even when carefully organised and supervised, can lead to injury (Kondrajian at [69]).
The question of what amounts to reasonable care in a given case must be seen in light of the fact that it is neither practical or desirable to maintain a system of education that seeks to exclude every risk of injury: Kondrajian at [66], see also Wright v Cheshire County Council (1952) 2 All ER 789 per Morris LJ at 796.
As McNair J observed in Jeffrey v London County Council (1954) 52 LGR 521 at 523: "[S]chool authorities...must strike some balance between the meticulous supervision of children every moment of the time when they are under their care, and the very desirable object of encouraging the sturdy independence of children as they grow up...What game was being played and how it was commenced is in issue. The result of that controversy will not be determinative on breach.

[57]

The defendant's submissions

A hybrid game is an appropriate activity for a PASS class (my finding is that it was a PE class).
Kicking as part of a game is not a breach of duty of care. The plaintiff says that touch games supervised by Mr Blair commenced with a kick. Therefore, the kick-off was not a random or unexpected event.
The fact that a risk was foreseeable and preventable does not mean it was negligent: see Shaw v Thomas [2010] NSWCA 169 This concept was also succinctly described in terms of occupiers' liability by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, where his Honour stated: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."
All that is required is reasonable care: see Dederer.
The defendant is not negligent merely because it fails to take an alternative course or conduct that would have eliminated all risk of harm. Rather it is for the plaintiff to demonstrate that the defendant was not acting reasonably in failing to take the course of conduct that he suggests is reasonable: see Thornton v Sweeney [2011] NSWCA 244 at [131].
The seriousness of the harm needs to be tempered by the social utility of the risk taking activity pursuant to s 5B(2)(d). When games are properly controlled and supervised, allowing children to participate in them is not, in the absence of special circumstances, negligent: see Kretschmar v State of Queensland (1989) Aust Torts Reports 80-272.
Where an injury is caused by an unfortunate occurrence that reasonable precautions could not have prevented, no breach of duty will have occurred: see Kady v Trustees of the Roman Catholic Church, unreported, NSWCCA, 19 February 1997; Nobrega v Trustees of the Roman Catholic Church, unreported, NSWCCA, 23 March 1999; Cooke v Kent County Council (1949) 82 Lloyds LR 823; Wright v Cheshire County Council (1952) 2 All ER 789; Kretschmar v State of Queensland (1989) Aust Torts Reports 80-272.
The hybrid game played in the PE class where the plaintiff was a participant had risks. The acceptance of those risks is not necessarily a breach. There was no breach of duty in relation to the conduct of the game or the reaction to the collision.

[58]

Resolution

The seriousness of the harm needs to be tempered by the social utility of the risk taking activity pursuant to s 5B(2)(d). When games are properly controlled and supervised, allowing children to participate in them is not, in the absence of special circumstances, negligent. I take into account the social utility of developing physical fitness and sports skills to PE students at school.
The hybrid game played by the top graded males in PE class was supervised by a PE teacher who also acted as the referee. The game was properly controlled and supervised. As previously stated, the plaintiff had played rugby league since a young age, playing one game under nines and then again at under 13s (T30.20-25). At the time of the incident he was about halfway through the rugby league season when he was playing under 18s for Eden Tigers as a winger or a fullback (T30.25-35). He had experience playing rugby league and competing for high balls (T30.45-50).
This evidence of the plaintiff's experience was corroborated by the evidence of Mr Slater in cross examination where he gave evidence (T80.14-81.9) that at the time of the head knock the plaintiff had played half a season of rugby league with the plaintiff leading up to the accident. He played in the position of either winger or fullback. The plaintiff's position was either a winger or a fullback. On a weekly basis Mr Slater would put high balls towards the opposition wing and fullback and the plaintiff would attempt to go through and catch them. Those high balls were contested high balls. From time to time there would be collisions in the air when this was happening. Mr Slater witnessed the plaintiff being tackled and making tackles. The other side would put up high balls and the plaintiff would have to try and catch them.
The defendant's expert Mr Meaney's opinion is that accidental contact was a possibility and the game played by the students and the supervision by Mr Blair was appropriate. The risk was foreseeable, the risk of physical harm was insignificant. A reasonable person in the plaintiff's position was in a position to make a considered decision whether he should contest the high ball (s 5B(1)(a)-(c)). As to s 5B(2), the reasonable person would have considered the probability of harm and whether he would be injured and the burden of contesting the high ball was not burdensome. In all of these circumstances, it is my view that the defendant did not breach its duty of care it owed the plaintiff.
The next issue to be determined is that of causation.

[60]

Neurologists' joint report and concurrent evidence

Professor Bruce Brew provided 3 medical reports dated 5 March 2019, 1 May 2019 and 26 August 2019. Dr Ian Sutton provided 2 medical reports dated 27 February 2019 and 6 November 2019.
On 6 November 2020, a conclave was held between Professor Bruce Brew and Dr Ian Sutton. A joint report dated 6 November 2020 was produced in evidence (CB 17.70).
At the hearing, Professor Bruce Brew and Dr Ian Sutton (the neurologists), gave lengthy concurrent evidence.
The neurologists were provided with a set of assumptions and provided opinions in accordance with them. At the outset they both acknowledged that they have been given conflicting interpretations and no there was firm data as to what actually occurred. While they were giving concurrent evidence, information given by lay witnesses at the hearing was in relation to the head knock, whether the plaintiff was rendered unconscious, at the first aid office, the bus stop, the beach and the trip to the hospital were read to them from the evidence contained in the transcript.
The neurologists agree on the following:

The remote history of an aunt possibly having seizures, is a vague history of febrile seizures and is not relevant;
The plaintiff suffers from a neurological condition of epilepsy.
The investigative tests and studies conducted by treating specialists have all returned normal results. (I have set out those tests and studies in detail earlier in my judgment).
As a result of the head knock the plaintiff suffered a mild traumatic brain injury. This finding requires some explanation. Professor Brew initially agreed with Dr Sutton that the plaintiff had mild traumatic brain injury. Then after parts of the transcript were read out to both neurologists, he altered his opinion on the assumption that several hours after the accident, the plaintiff was coming in and out of consciousness, wobbling on his feet and not remembering what had happened to that of a moderate brain injury (T164.8-17). When asked about the hospital notes that record "says he can't feel over area of head" both neurologists agreed that it indicates that there is trauma to that area which is at least mildly significant. They also agreed that it points to an increased likelihood of brain injury but it does not have much significance (T 169.3-20). After more evidence was read to the neurologists, including the rudimentary TOTAP's test administered by the PE teacher, both neurologists then agreed that this is consistent with a mild traumatic brain injury.
As at February 2019, the plaintiff had been treated with three anti-epileptic drugs, Eplim, Tegretol and Lamictal. The plaintiff had complained of side effects from the medication. The plaintiff had acknowledged that in the past he has been non-compliant with medication as a result of the side effects (T61.50-62.6).
A number of other anti-epileptic drugs are potentially available for treatment.
If the plaintiff is compliant with the medication prescribed and they can be tolerated by him, he avoids sleep deprivation and excess alcohol consumption then he would have at least a 70% chance of remaining seizure free.
Dr Sutton provided evidence that 70% of people will be rendered seizure free if they are compliant with medication. At T179.40; T180.10, he gave the following evidence: "Firstly, I'm aware of Mr Mattock trying three drugs: Lamictal, Epilim, and Tegretol. It is unclear as to whether he has failed treatment with those medications through non-compliance either voluntarily, or as a result of side-effects. So has he continued to have seizures on medication? I don't think that that has been established. The idea that we're going to rely on some future development of a miracle drug is not true either. There are plenty of medications that he could be trialled on which may be more tolerable and potentially affect it and potentially effective, you know, glucosamine, Keppra, BRIVIACT, Topamax. There are a lots of drugs that he hasn't tried. There is also the potential for combinations of drugs."
At the hearing, the plaintiff gave evidence that he would be willing to properly comply with medical advice and treatment as a result of maturing; and the recent arrival of his baby daughter and associated responsibilities (T62.4-19).
When considering the prospect of a type of medication that would work for the plaintiff, Professor Sutton said there would be a 50% chance that some kind of medication would work for the plaintiff if he was prepared to accept the side effects and there would be a 70% chance that the plaintiff would be seizure free. Professor Brew agreed but with the caveat that the plaintiff would have to accept those side effects (T209.4 2; T210.6).

[63]

(ii) If the plaintiff suffered a mild to moderate traumatic brain injury and suffers seizures as a result of the head knock

When asked, in terms of the extent to which the neurologists agreed that there was some traumatic brain injury, even if it were only mild or mild to moderate, could someone who suffered that injury suffer seizures as a result of that injury? (I have made a finding that it was a mild traumatic brain injury) Professor Brew answered yes.
Dr Sutton disagreed and gave a more expansive explanation. It is as follows. "So to clarify your question first of all, you've said "mild" or "Mild to moderate," so my answer to the question is that this is a mild traumatic brain injury based on grounds that there were no loss of consciousness, no significant post-traumatic amnesia, no focal neurological symptoms, or no concern from the emergency department that Mr Mattock required any imaging to exclude intracranial haemorrhage or fracture. So based on the fact that he had a mild traumatic brain injury, the evidence is that mild traumatic brain injuries do not significantly, or do not increase the risk of post - late onset post‑traumatic epilepsy."
Professor Brew disagreed with counsel for the defendant when he asked: "Would you agree that all materials relevant to the plaintiff have to be considered in coming to a conclusion as to whether an injury of this nature could cause the epilepsy, and, firstly, do you agree on that."
Professor Brew answered: "No, I don't actually. Mild traumatic brain injury does carry increased risk of late onset epilepsy. The risk is small, but it's not zero."
Dr Sutton agreed. Both experts agreed that in essence there is a large body of inconclusive literature, which I will refer to later in this judgment. Professor Brew also acknowledged that there clearly are controversies and murky areas but the online texts and references that he provided that that there is an increased risk albeit small, but it is not zero.
When the neurologists were asked if it is relevant when considering whether these seizures have been caused by the head knock and taking into account that the plaintiff's assumptions that he did not suffer from these seizures before the accident and started to suffer them after the accident, how relevant would that be in their view? Professor Brew's opinion was that there is strong or moderately strong evidence of a causal relationship rather than a coincidental one. Whereas, it is Dr Sutton's opinion that correlation does not equal causation. It is Dr Sutton's opinion that one has to look at the nature and severity of the head injury and the nature and type of seizures. The type of seizures that the plaintiff describes are consistent with primary generalised seizures. There is no evidence from subsequent imaging that there was any structural brain damage (this also is all common ground). There was no evidence from EEG recordings that there was focal brain damage (this also is all common ground). So if it is proposed that the head injury resulted in a focal cerebral injury that predisposed to seizures it would be expected that those seizures be corroborated by imaging, neurophysiology and the history, and the history is not one of focal onset seizures, but rather is one of generalised seizures. Dr Sutton does not agree that these seizures have their onset in the head knock. His opinion is that on the balance of probabilities, the plaintiff suffers from is a generalised epilepsy disorder.
Dr Sutton, when asked, for an explanation as to why, if you accept it's the case, he didn't have these seizures before this accident replied that it is frequent to get a dual pathology. By way of example, he said that he had just seen a similar patient presenting with primary generalised epilepsy who had an MRI, he expecting the MRI to be normal, but the patient has coincidentally turned up to have mild changes of multiple sclerosis. "Now, those mild changes of multiple sclerosis have nothing to do with the seizures". It was Dr Sutton's opinion the head trauma and the epilepsy are two unrelated issues (dual pathology).
Professor Brew had two things to say in answer to this question. Firstly, the history given to him by the plaintiff was that he does have a vague warning prior to the seizures and that rules against a pure primary generalised epilepsy of being likely, and then, secondly, about a quarter of patients can have generalised convulsions alone. Professor Brew referred to vague local warnings but did not make any reference to them in his reports.

[64]

(iii) Medical literature

In evidence, Professor Brew referred to an article entitled "Post Traumatic Epilepsy" by Ravindra Kumar Gar MD, C P Panayiotopoulos MD PhD. In that article, under the heading "Clinical manifestations" sub-heading "Presentation and course" at [2] it states: "Seizures remain in about one quarter of patients with posttraumatic epilepsy, partial-onset seizures with secondary generalization occur in about one half of patients, and generalized convulsions alone occur in the remaining one quarter of patients."
Professor Brew also referred to a Wolters Kluwer article entitled "Post-Traumatic seizures and epilepsy" by Randolph W Evans MD, FAAN, Steven Schachter MD https://www.uptodate.com/contents/post-traumatic-seizures-and ep, under the heading Post Traumatic Epilepsy, where he states: "The severity of TBI [traumatic brain injury] strongly correlates with risk. In one population-based cohort, the cumulative five-year probability of seizures was 0.5 percent in patients with mild injury (those with loss of consciousness or amnesia <30 minutes;…" and "As an example, if a patient has a seizure with partial onset that corresponds to the site of brain injury, and has no fever or unexplained abnormalities on examination, then it may be reasonable to limit the evaluation to a neuroimaging study (CT or MRI) and basic laboratories (chemistries and toxicology screen). If the trauma history is more remote, or the injury mild, then an association between the seizure and trauma may be less clear, and a thorough evaluation should be completed."
Both neurologists agree with what is said in this example.
The final reference is cited by Dr Sutton in the New England Journal of Medicine, entitled A Population-based Study of seizures after traumatic brain injuries, by John F Annegeris PhD, W Allen Hauser MD, Sharon P Coan MS and Walter A Rocca MD MPH dated 1 January 1998 (Ex A(2), Tab 36 p 358) ("the journal"). Both neurologists agree that the journal is a prestigious peer review journal with exacting standards (T197), although Professor Brew is of the opinion that in a textbook such the one he cited, a series of experts have to write a particular chapter , then it has to be reviewed and re-reviewed carries somewhat more weight. Dr Sutton prefers the peer review journal article on the basis that science is about proposing a hypothesis, having a rigorous test of that hypothesis and then deciding on the balance of probabilities, but there is no certainty. Dr Sutton says that his judgment was based on the balance of probabilities of the evidence including data in the graph reproduced below.
Dr Sutton referred to a graph, reproduced below: No. OF PATIENTS Mild injury 2758 1751 1191 609 Moderate injury 1455 S34 660 351 Severe injury 328 181 136 74 Total 4541 2866 1987 1034

[65]

Figure 1. Cumulative Probability of Unprovoked Seizures in 4541 Patients with Traumatic Brain Injuries, According to the Severity of the Injury and the Incidence of Seizures in the General Population. The cumulative incidence in the population was derived from incidence with the use of the density method to convert the rates to risk estimates." The asterisks indicate the Incidence In the general population at specified points in time.

He explained the meaning of the graph is as follows (T196.22-41): "So this is the risk of post‑traumatic epilepsy with time in years across the bottom, looking at three cohorts, severe, moderate and mild and comparing it with this line down the bottom which is background incidents in the general population. So those patients with severe head trauma probably have about a 15% chance of developing post‑traumatic epilepsy at ten years, so that's fairly significantly over and above the background population, but as you can see with a moderate traumatic brain injury the risk is only - perhaps I think it quoted 1.2% above the background population whereas mild traumatic brain injury is almost the same. It is slightly higher, the figure that was counted was 0.5% but in the discussion they talk about the fact that there may be an ascertainment bias in people who have had the head trauma and when they did a subgroup analysis of 570 patients, none who had not had post‑traumatic amnesia or loss of consciousness for more than 24 hours were deemed to be at increased risk compared to the background. So there are some arguments, so - which is why I said earlier that it's a moot point as to whether mild traumatic brain injury does associate with an increased risk. There may be a small increased risk but that's still debated."
From this journal article, it appears that the risk of post traumatic epilepsy in mild traumatic brain injury where the patient (such as the plaintiff) had not had traumatic amnesia or loss of consciousness for more than 24 hours is 1.2% above the background population. I have made a finding that the plaintiff did not suffer a loss of consciousness and if I am wrong it was certainly not for more than 24 hours. I accept and prefer the peer review evidence referred to and explained by Dr Sutton. Hence, if the plaintiff had a traumatic amnesia or a loss of consciousness of more than 24 hours, he had less than a 1.2% chance of suffering post traumatic epilepsy.

[66]

(iv) Post traumatic epilepsy or general epilepsy?

The neurologists disagree as to whether the plaintiff has post traumatic epilepsy or primary generalised seizure disorder (a disorder with no identifiable cause) Professor Brew disagrees with the opinions of Dr Sutton and Dr Zentner of the specialist epilepsy service at Prince of Wales hospital, Dr Zentner and Dr Morton are of the opinion that the plaintiff suffered from idiopathic primary generalised epilepsy. Professor Brew's opinion is that the plaintiff has post traumatic epilepsy rather than generalised epilepsy for the following reasons: Alcohol and sleep deprivation are more common precipitants in primary generalised seizures where there is no focal onset to the seizures. "1 The plaintiff had a traumatic brain injury which was either mild or moderate in severity. 2 He subsequently developed seizures some months later. 3 There is no definite family history beyond that of his maternal aunt who is suspected of having epilepsy [and this had been disregarded as being irrelevant by both neurologists]. 4 The EEG does not show abnormality consistent with genetic epilepsy. 5 The diagnosis of genetic epilepsy according to the International League Against Epilepsy and according to the American Academy of Neurology is "When the clinician determines that a clear genetic aetiology is present." No objective evidence beyond opinion has been presented."
Dr Sutton's opinion that the plaintiff has an idiopathic primary generalised epilepsy which is probably genetic, although not proven. He agrees with the opinion of Dr Morton of the specialist epilepsy service at Prince of Wales Hospital.
Earlier in this decision, I have referred to the notes of Dr Morton a neurology consulting clinician dated 3 June 2019. The plaintiff was admitted to the neurology ward, where EEG monitoring took place that recorded no seizure throughout admission. He reviewed video footage of seizures (from home recorded by the plaintiff's partner). Dr Morton's opinion is that it was more likely that the plaintiff has generalised epilepsy, not related to the head trauma sustained in the head collision.
Dr Sutton then gave evidence: "… In my view there is no clear evidence that the head trauma resulted in loss of consciousness [this accords with my finding]. The only contemporary documentation of that is the medical record from Pambula Hospital, in which it is documented there is no loss of consciousness. There was no post-traumatic amnesia. As referred to in my report, loss of consciousness and post traumatic amnesia are the two major risk factors for the development of post-traumatic epilepsy. Moreover, in my report I refer to the work of Christensen, which says in the setting of a normal MRI and a normal EEG it is very difficult to prove a diagnosis of post-traumatic epilepsy. Normally in post-traumatic epilepsy you would expect a focal brain injury with a focal onset of seizures. Neither of these are documented. The clinical history of the seizures arising in sleep deprivation an alcohol is more typical of an idiopathic primary generalised epilepsy. It is reasonable to say that while Prof Brew and I both agree on the diagnosis of epilepsy, we disagree on the fundamental cause in that I do not believe this is a post-traumatic epilepsy, but Prof Brew does."
Professor Brew agreed with Dr Sutton's last statement but made the following qualifications: "The issue of post-traumatic epilepsy and severity of head injury is one of a spectrum, including mild traumatic brain injury which is defined as per my report of 26 August 2019 and the attached reference as loss of consciousness or amnesia for less than 30 minutes, with moderate being loss of consciousness for 30 minutes or more. [I did not find that there was a loss of consciousness, but rather concussion]. Both these severities, or degrees of severity of head injury, carry a small risk of subsequent epilepsy as detailed in my report as previously mentioned. The second qualifying comment I make is that I agree with Dr Sutton that alcohol and sleep deprivation can cause seizures in a non-epileptic or exacerbate seizures in an epileptic, but I disagree that those precipitating factors are characteristic of idiopathic primary generalised epilepsy. They can serve as precipitating factors for any type of seizure."
Professor Brew considered that the plaintiff has generalised epilepsy, on the basis that the plaintiff mentioned to him that he has a vague warning sometimes. The nature of this warning is difficult to be precise about but the significance of such a warning that may suggests that he has focal seizures quickly becoming generalised. As stated earlier, there is no reference to the plaintiff experiencing a vague warning that may suggest he has focal seizures in his report. In the absence of evidence as to the plaintiff suffering focal warnings, I prefer Dr Sutton's view that the plaintiff suffers from a primary generalised seizure disorder. Dr Sutton's opinion accords with Drs Zentner and Morton. This means that while the plaintiff did suffer a mild traumatic brain injury, it did not cause him to develop post traumatic epilepsy.

[70]

The neuropsychologists' report dated 2 February 2021

Neuropsychologists, Professor Richard Merrick and Associate Professor Jennifer Batchelor provided an expert neuropsychologists conclave report dated 2 February 2021.
Both Associate Professor Batchelor and Professor Mattick agree that the plaintiff does not suffer any disorder under DSM-5.
When asked what treatment and/or advice is available for the management of the plaintiff's psychiatric or psychological disorder(s), Professor Mattick is of the view that the cause of the plaintiff's anxiety and unhappiness is his epilepsy and also the plaintiff's repeated loss of employment and the loss of his licence. Professor Mattick says that as the plaintiff does not suffer a psychological disorder, no treatment is warranted, but some counselling of 4 to 6 sessions may help him to adjust to the loss of his licence. Associate Professor Batchelor takes a view that treatment and domestic assistance are not matter for comment by a neuropsychologist.
Professor Mattick is of the view that there is no evidence that the plaintiff has not been able to care for himself in the past because of his unhappiness and anxiety. There is also no evidence that the plaintiff cannot do the basic activities of daily living and that his cannot carry out domestic and other similar activities.
As to future care, Professor Mattick's view is that it is clear that the plaintiff can carry out the basic ADLs [aspects of daily living]. He can shower, dress himself and carry out all the normal activities of daily living. He can prepare and cook meals. However, if he has a headache, he may not be bothered to do some domestic tasks, but he can do them. The plaintiff told Professor Mattick that he can do light and heavy housework and house maintenance. Professor Mattick said that there might be a caveat that in an acute seizure period, the plaintiff could be acutely affected but there is no long term permanent impairment and the plaintiff can care for himself.
Associate Professor Batchelor is of the opinion that the plaintiff does continue to suffer cognitive impairment. Professor Mattick agrees with this but adds that there is evidence of acute impairment associated with seizures and postictal recovery.
It is Associate Professor Batchelor's opinion that it remains possible that the plaintiff suffers from ongoing impairment of recent memory for visual material. Professor Mattick accepts that in the acute period after a seizure, the plaintiff could, for a brief number of days, suffer from memory problems.
Associate Professor Batchelor says that in the absence of any history of brain injury it is very possible that the plaintiff's memory disorder is a result of the accident. She does not accord with the opinions of Dr Sutton, Morton and Zentner whose opinion I accept and prefer for the reasons given earlier in this decision. She does not agree that the plaintiff's memory problem is only evidence in the state following a seizure and that the neuropsychological data is such that it remains possible that the plaintiff has an ongoing impairment of recent memory. Professor Mattick says that the cause of the plaintiff's reported cognitive difficulties is the acute postictal period.
Both neuropsychologists agree that that the plaintiff had no predisposing factors for cognitive impairment. They also agreed that the plaintiff has not received treatment for cognitive impairment. Both agree that treatment is available for the management of the plaintiff's cognitive impairment.
Professor Mattick's opinion is that the plaintiff's prognosis for acute cognitive impairment post seizure is good if the seizures can be stopped by taking the appropriate medication. Associate Professor Batchelor opinion is that it is just not possible to make prognostic statements at this stage as the possibility that there is an ongoing and permanent disorder of recent memory has not been addressed and thinks that need to be examined before prognostic statements can be determined.
So far as the plaintiff's ability to maintain employment is concerned, Associate Professor Batchelor's opinion is that it will be frustrating for an employer because the plaintiff's cognitive impairment will have an impact. An employer would be expected to remind and prompt the plaintiff and he would have problems with any occupation which required performing more than highly routine very structured work. She cannot be specific about occupations.
In relation to the plaintiff's ability to maintain employment and the impact on his cognitive impairment, Professor Mattick's understanding is that the plaintiff has been asked to leave jobs in the past due to his seizures, not because of poor memory. Associate Professor Batchelor disagreed with his opinion. She explained that the plaintiff left earlier jobs for a variety of reasons, such as as inadequate pay. Chris Steiner of Mitre 10 gave evidence that the plaintiff's employment was terminated because of his absence from work when he had seizures, not that he was unable to do the job.

[88]

The occupational therapists' joint report

On 5 February 2021, Kelly Walcot and Susan Borthwick held a telephone conclave.
Both therapists agree that the plaintiff will require domestic assistance in the future in the form of a home handyman or yard assistant, but not specifically for domestic assistance. The neurologist do not think that the plaintiff requires domestic assistance for the past or future.
Ms Walcot says that if the neurological conclave suggests that the plaintiff continues to require 24 hour monitoring post seizure periods, then she would recommend 4 hours per week for home care on the assumption of a monthly post monitory seizure periods. The neurologists did not say that 24 hour monitoring was not required, then she would recommend 3 hours per month.
Ms Borthwick recommends that the plaintiff follow the advice provided for seizure prevention through behavioural change and possibly see a psychologist to assist with this, and with development of a seizure response plan. Ms Borthwick says that the Epi Assist will ensure that should the plaintiff not be able to follow through himself, then someone will be altered who can. She says that the plaintiff should also review his lifestyle choices generally to ensure he can remain independent and safe at home and at work in the future. She basis this information on the fact that the plaintiff's epilepsy is not severe, is not occurring frequently nor is it greatly variable in his seizure response.
Her evidence is that 20% of people with epilepsy live alone and with the support of groups such as the Epilepsy Foundation and his treating doctor, the plaintiff should be able to live independently.
The therapists agree that: 1. the plaintiff would benefit from using information that is readily available from medical professionals or other sources of online information to better manage his seizures. 2. while the plaintiff can drive, he should be provided with 8 taxi vouchers per annum for those occasions when during the postictal phase he may need to consult a doctor, because driving during this phase is not recommended. They both agree that the plaintiff will require equipment such as an Epi Assist monitor for the remainder of his life. 3. the plaintiff requires installation of $250, plus occupational therapy consultation at $181 per hour including GST, to ensure adequate placement and that appropriate items are purchased shower and 1 seat at a cost of $150. 4. mowers of any sort are not required as mowing the lawn is not an activity that is required or recommended to be undertaken only in the postictal period.

[90]

Future domestic care

The plaintiff submitted that the plaintiff requirement for future care, although ongoing, correlates with his seizures, which makes quantification complicated. As a result, the plaintiff claims future care in the form of a buffer in the sum of $75,000.
The defendant has made no allowance for future care on the basis that the type of care likely to be provided to the plaintiff amounts to preparing for and checking on him during the postictal period is unlikely to be provided to him commercially and therefore would not pass the threshold for gratuitous care.
Both neurologists agree that up until February 2019, the plaintiff had received treatment with three anti-epileptic drugs - Epilim, Tegretol and Lamictal, and he had complained of side effects from medication and that there are a number of other anti-epileptic drugs that are potentially available for treatment. If the plaintiff is compliant with the medication that is tolerated, avoids sleep deprivation and excess alcohol then he would have at least a 70% chance of remaining seizure free. Professor Brew added that the plaintiff has experienced, in his eyes, intolerable side effects from three anti-epileptic drugs. The appropriate management then consists of trying to find anti-epileptic medication that he can tolerate. This should be accompanied by full education for the plaintiff in relation to the dangers of untreated seizures.
From the medical records, the plaintiff when he was a young man, did not take any medication for epilepsy. As previously stated, it is my view that now the plaintiff is of more mature years and if he is prepared to make lifestyle changes including getting enough hours of sleep and not drinking alcohol, he will avoid triggers that make him suffer epileptic seizures. He also gave evidence that he will be compliant with taking prescribed medications if the side effects are not great but tolerable.
The occupational therapists to not think that the plaintiff requires domestic assistance in the future. Both Professor Brew and Dr Sutton agree that the effect of the condition on the plaintiff's ability to care for himself in the past has essentially revolved around the same issues that affect anyone with significant epilepsy. He has the ability to care for himself, there is no impact on personal care, that is toileting and showering and so forth. However, there may be some impact on his ability to look after himself given the frequency of the seizures and the preferred setting in which he has access to another person should he have a seizure, then that person can attend to him.
Dr Sutton added that it would not impact upon the plaintiff's ability to care for himself in activities of daily living. It would impact on him in terms of caring for himself, in that as a result of his seizures, he is unable to drive, which may affect things such as shopping. However, he is clearly capable of caring for himself and he has had several jobs since leaving school.

[102]

Future economic loss

Claims for future economic loss are governed by s 13 of the Civil Liability Act. It reads: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
The plaintiff's claim for future economic loss is made on the basis of one of the following past economic loss scenarios to retirement age of 70 (46 years/956.1). The defendant submitted that the period of future economic los as claimed by plaintiff should be up until he reaches the retirement age of 67 years. The plaintiff claims future economic loss as on the same 3 scenarios as past economic loss, plus scenario 4, which is an amount for a buffer.
While the plaintiff makes an alternate claim that he will work past the current retirement age to 70 years of age, without any evidence in support of this proposition, it is my view that the plaintiff will retire at the current retirement age of 67 years. The period is not until the age of 67 (43 years - 9.38.2 at 5%). The plaintiff' future economic loss should be calculated to the retirement age of 67. 1. Scenario 1 as a Chef at a rate of $841.86 net plus CPI increases of 1.7% and -1% totalling $847.61 net per week x 956.1 x vicissitudes increased from 15% to 25% totalling $607,799.94.
The defendant makes no allowance for scenario 1. 1. Scenario 2 at average weekly earnings of $1,165.20 net plus CPI increases of 1.7% and -1% totalling $1,173.16 net per week x 956.1 reduced by 25% vicissitudes totalling $841,243.71.
The defendant makes no allowance for scenario 2. 1. Scenario 3 as an employee of Mitre 10 not quantified as per T88.19-21.
The defendant does not agree with scenario 3 but if an award is made then it should be discounted due to the evidence of the plaintiff's willingness to comply with treatment and the probability of being able to find a medication to manage his seizures. 1. Scenario 4, a buffer/cushion to reflect the plaintiff's reduced capacity for employment.
The defendant agrees that the best approach to scenario 4 is a buffer based on the plaintiff's willingness to comply with treatment and the probability of being able to find medication to manage his seizures. The defendant suggests a buffer of $150,000 to $200,000.

Mattock v State of New South Wales

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Cases Cited (34)