Sanchez-Sidiropoulos v Canavan

Court of Appeal (NSW)|2016-08-15|Before: Beazley ACJ, Basten JA, Payne JA, Mr J, Schmidt J

Solicitors: J P Capsanis & Co (Appellant) Makinson D'Apice Lawyers (Respondent) File Number(s): 2015/260246 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2015] NSWSC 1139 Date of Decision: 14 August 2015 Before: Schmidt J File Number(s): 2009/297447

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The appeal

The appellant's lawyers have struggled to identify grounds of appeal. A notice of appeal filed on 13 November 2015 listed 31 grounds alleging errors in factual findings. An amended notice filed on 11 December replaced one ground and added 10 new grounds. On 22 March 2016 a further amended notice of appeal was filed, which reduced the grounds to eight; grounds 1, 2 and 3(a) and (b) related to liability. [2] Error was also alleged in the failure of the trial judge to accept certain medical evidence which would have formed a basis for a claim of continuing and significant harm. Otherwise, the various notices of appeal merely invited the Court to find negligence and remit the matter for a new trial to assess damages.
On 10 December 2015, within 28 days of the filing of the first notice of appeal, the respondent filed a motion seeking that the appeal be dismissed as incompetent. The apparent basis of the motion was that the appellant had not demonstrated that there was an amount of $100,000 in issue on the appeal, without which the appellant required leave pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). By consent, the motion was stood over to be heard with the appeal.
Apart from a question as to protection against costs if the appeal were to be held incompetent, the motion served no purpose. It did not give rise to an early disposal of the appeal, nor did it lead the appellant to file a summons seeking leave to appeal. The assumption underlying the course taken by the parties was, apparently, that the likely assessable damages depended upon the correctness of the findings made by the trial judge with respect to the medical evidence. In these circumstances, the convenient course is often for the court to consider the question of damages on the merits, rather than assess, on a motion as to competence, the arguability of the alleged errors.
The appellant's written submissions, filed on 2 May 2016 addressed the grounds in the further amended notice of appeal. The grounds relevant to liability were as follows: "1. Her Honour was correct to find that the class teacher was distracted or inattentive at the material time [177] but erred in failing to find that in all the circumstances this was a breach of the respondent's duty of care; 2. The inference drawn by her Honour at [177] that the teacher's distraction was caused by something else happening on the court was not supported by direct evidence and in all the circumstances should not have been drawn. 3. Her Honour erred in failing to give proper reasons (a) [by] making findings on the mechanics of the collision that engaged with the issues in contest between the parties [and] (b) [in] explaining her Honour's conclusion that the teacher being distracted or inattentive at the material time was not a breach of duty."
The respondent's written submissions, dated 20 June 2016, responded to the appellant's submissions, again directed to the grounds in the further amended notice.
A copy of a second further amended notice of appeal was sent to the Court on Sunday evening, for the hearing fixed for the next day. (Counsel for the respondent said that he had received the document on Saturday.) Again, it is sufficient to deal with the grounds as they related to the issue of liability. The whole of the three grounds in the further amended notice were struck out and were replaced by a single ground in the following terms: "3A. Her Honour erred in failing to accept that the combination of the selection and operation of table soccer game … in which the appellant injured herself was in all the circumstances negligent, those circumstances being: (a) the particular game and the failure to select a different game; (b) the asphalt surface; (c) the age of the players."
The respondent, understandably, opposed the late amendment of the grounds of appeal, which, in respect of liability, appeared to jettison the grounds and the written submissions already filed and to raise a new and potentially broader ground, of uncertain extent. The Court invited counsel for the appellant to articulate the basis on which he now sought to argue that the judge had erred in finding that there was no negligence on the part of the respondent.
In the course of those submissions, it became clear that the new ground, as presented, was inconsistent with reliance on grounds 1 and 2 in the further amended notice, namely that negligence was demonstrated by the inadvertence of the teacher conducting the class. Counsel accepted that once the children were running around on the basketball court in the course of the game, the risks of collision in the normal course of play could not be realistically mitigated by supervision. Counsel was therefore invited to clarify whether, if leave were refused to file the second further amended notice, there was anything he wished to say in support of the grounds in the further amended notice. He did not seek to rely upon the written submissions filed for the appellant and conceded, in substance, that he did not seek to put submissions in support of the earlier grounds 1 and 2. Upon it being pointed out that ground 3, in so far as it related to liability, was limited to a complaint of failure to give proper reasons, counsel agreed that nothing he had put supported such a ground.
The Court was not unmindful of the costs thrown away by the abandonment of the third attempt at identifying grounds of appeal and the exchange of written submissions based on that attempt. Nor was it unmindful of the potential prejudice to the respondent in having to address grounds which had been articulated on the weekend before the hearing of the appeal. However, it is sufficient to say that such a late amendment should not be permitted unless the Court were satisfied that actual and significant prejudice might be suffered by the appellant were the application to be refused. In that regard, the Court was also conscious that the imprecision attending the new ground with regard to liability might be a function of the short time within which counsel had been required to prepare for the appeal. However, having heard counsel explain the proposed new ground in some detail, the Court was satisfied that it lacked substance and, accordingly, refused leave to amend.
It was also necessary for the Court to consider whether, although not pursued by counsel at the hearing, there might be a point of substance in the grounds relevant to liability in the further amended notice of appeal. The Court had, however, satisfied itself on the papers that no case for intervention had been made out; nothing was said in support of those grounds at the hearing. Accordingly, the appeal was dismissed. However, in dealing with the reasons for dismissing the appeal, it is appropriate to set out reasons for rejecting the challenges set out in the appellant's written submissions.

Circumstances of accident

The game being played by the appellant at the time of her injury was a form of tag known as "table soccer". (The description derived from the similar structure to the lines of players on the table soccer playing field.) The game was played on an asphalt basketball court; the taggers were required to keep to white lines across the court, whilst the runners sought to go from one end of the court to the other without being tagged. A tag could only be made whilst the tagger kept one foot on the white line. Those who were tagged became taggers.
The game was intended as a warm-up session for a physical education class. It was being supervised by the PE teacher, Ms Amy Luland. The appellant was one of a small number of runners (seven or eight) left in the game when she collided with another runner and fell on her right wrist and hip. The bruising to her hip resolved satisfactorily within a reasonably short period. The sprain of her right wrist took longer to resolve and was the source of the claim for damages.
There was no dispute that the teacher did not see the accident occur. Her recollection was that they were about halfway through the game when the appellant fell over. She completed an accident report at the time of the incident and a statement in September 2014. She said that she sent the appellant to the office with another student for assistance. The appellant was later taken to hospital and her wrist x-rayed. No break in the bones was revealed.
The accident occurred when the appellant and another runner (Jessica) collided: the fact that children might collide (or trip, or stumble or fall for any other reason) was foreseeable and was an intrinsic aspect of the game. As the judge stated: [3] "[a]ny tag game carries a risk of collisions and falls."

Breach of duty - proposed new ground

Counsel for the appellant focused upon a brief summary of the judge's conclusions with respect to liability set out at [64] in the following terms: "I am satisfied that the evidence to which I will now turn, established that the case advanced for Ms Sanchez-Sidiropoulos overstated the nature of the risks posed by table soccer, even when played on asphalt; that the way in which the risks which it posed were, in fact, managed by the instructions given and the supervision provided that day by Ms Luland, which was adequate; and that, in the result, the School did not breach the duty which it owed Ms Sanchez-Sidiropoulos."
Counsel submitted that the primary error in this passage lay in the reliance on supervision as a means of minimising the risks of the game. He also challenged the proposition that the appellant had "overstated the nature of the risks" and the proposition that there had been instructions given on "that day".
Counsel also referred to the statement, again in summary terms, at [108] where the judge stated that the failure to undertake a formal "risk assessment" did not establish that the game was unsafe and continued, after noting that there was a risk of collision and falls: "The evidence establishes that both the rules of the game and its supervision were directed at addressing the risks which it did pose, including when played on asphalt."
Counsel submitted that the rules of the game created the risk and did nothing to ameliorate it; he also noted the further reliance upon supervision, which could not have assisted once the game was underway.

(a) selection of game

Different views were expressed as to the appropriateness of the game by educational consultants called for each party. Thus, in his various reports, the appellant's expert, Dr Tronc, asserted that the game was simply inappropriate for 10 year old children. Professor Marino, called by the respondent, was of a different view. The conclusions reached by the trial judge were expressed in the following passages: "[165] In their concurrent evidence, the experts finally agreed that table soccer was appropriate, if properly supervised for the age group. Professor Marino maintained his view that the game had been developed as a variant of touch football, where a static line of players mimics a defensive line and that it was no more vigorous than the game of basketball, for which the court on which it was played was designed. The fact that the collision had not been seen, on his view, could not establish that the supervision given that day by Ms Luland had been inadequate. [166] Dr Tronc maintained his view that the supervision had not been adequate, given that Ms Luland had not seen the collision and that there had been a lack of instruction given about safety precautions before the game. I have already dealt with the instructions actually given. His opinions rested on Ms Sanchez-Sidiropoulos' recollections, which were not reliable."
The only challenge to the selection of the game thus depended on the views taken as to the instructions and supervision, and how the game was actually played.

(b) inadequate instructions

The trial judge dealt with the complaint of inadequate instructions by reference to the appellant's own evidence in the following terms: [4] "Ms Sanchez-Sidiropoulos then agreed that the practice in PE was for teachers to explain the rules of a game to the class, even if it had been played before, but denied that this teacher had done so on the day she fell. She agreed that she had been given instructions about playing safely on many occasions, but denied that on this occasion, she had been told to be aware of other children on the court. She also said that she knew that anyway and that it was obvious from other games they had played, including netball and basketball, where she had to avoid others moving in different directions, or coming into her path. She also denied that day having been told that rough play would not be tolerated, but also said that she also knew this anyway."
Although the trial judge found that the appellant's evidence "was not reliable in important respects", [5] even on her own evidence, a complaint of failure to give appropriate instructions and directions must have failed. Assuming that those instructions and directions were not given on the day of the accident, nothing turned on that fact. Given the appellant's acknowledgments as to her own understanding, a failure to give such instructions or directions on the day of the accident would have been causally insignificant.

Even if, as the appellant submitted, Dr Tronc's view that the game should not have been played on the asphalt surface of a basketball court were to be accepted, that factor was causally immaterial. The matter was dealt with by the trial judge in the following passage: "[121] It is unarguable that some risks are more likely to materialise when games are played on the type of asphalt courts used at this and other schools around the State, to deliver the PE curriculum. On the evidence of Professor Marino, some risks of injury are, however, increased when games are played on other surfaces, even grass. It is tackling games like rugby which are too dangerous to play on asphalt. Dr Tronc considered that table soccer was also such a game. Professor Marino disagreed. [122] That controversy has to be considered in light of the injuries which can result from a fall during such a game, which involves tagging, not tackling. Undoubtedly such an injury may be serious, involving a broken bone, for example. But falls onto grass can also result in serious injury. Dr Spira said that both a fall onto asphalt and grass can result in a hyper flexion injury of the wrist, but that there would be less resulting abrasion from the softer surface. Dr Dilley said that even a minor injury from a fall onto grass could result in the development of CRPS, which may be caused even by a slight knock on the back of a hand on a door. Dr Champion agreed."
This account of the evidence, which was not challenged, demonstrated that, even had there been some basis for a finding of negligence in allowing the game to be played on an asphalt surface, the danger from that surface was of an increased risk of abrasion, not the "hyper flexion injury of the wrist" which the appellant suffered.

(d) age of players

This was a consideration which had been identified by Professor Marino as a relevant factor in designing appropriate games. He had noted that children of 10 years were less likely than older children to have developed peripheral vision. (Dr Tronc was not able to express an opinion as to this issue.) [6] However, neither expert expressed a view that the game was inappropriate for this reason.
On the other hand, the experts agreed that "spatial awareness was a taught skill, with teachers aiming to develop capacities and abilities which children of that age are assumed to have." [7] The judge also stated: [8] "In 2005, the State curriculum required 10 year old children to play team games at school which involved them running, dodging, weaving and in some cases, touching. Such games did give rise to risks of collision, fall and injury. Such risks arose whether the game being played was table soccer, other forms of tag, touch football, basketball, or netball, all games played at this School by Ms Sanchez-Sidiropoulos."
There was no basis for a breach of duty based on the selection of the game as inappropriate for 10-year olds.

(e) manner in which game played

One aspect of the plaintiff's evidence, accepted by Dr Tronc as relevant to his opinions, was that the game was played "at a furious pace" [9] and that "the whole situation was chaotic and frantic." [10] However, the trial judge rejected that characterisation. [11] No reason was advanced to interfere with that finding.

(f) dangerousness generally

Ultimately, the challenge to the selection of the game appears to have rested on the propositions that (a) the game of "table soccer tag" was inherently dangerous and (b) there were other games which enjoyed the same benefits and were less dangerous. These propositions were put in various ways to both the principal of the school, Mr Warren Hopley, and the PE teacher, Ms Luland. Both made concessions as to the risks involved in the game and that there were other games which could have been played. However, the concessions did not assist the appellant. For example, Ms Luland accepted that there were a variety of warm up exercises which could have been chosen, [12] but did not agree that they involved "a much reduced risk of collision over the form of game you were playing". [13] Mr Hopley gave evidence in the following terms: [14] "Q. Do you accept that there were many activities or games available to Ms Luland to select from that did not involve any risk of collision between the children? A. Yes, that's true. That's true. Q. Do you accept that in this case that there was a risk of harm to a child playing table soccer, that there would be a collision and a fall causing injury that could have been minimised by selection of a game or activity that didn't involve a risk of collision? A. That's true for most sports that she would have picked. I mean all sports games have some level of risk. … Q. The nature and risk of collision in netball or basketball was quite different to the nature of this collision in this running tagging and evading game isn't it? A. Yes, I think it's safer in the table soccer. Q. Well there is much more risk of collision in table soccer, isn't there, because by the end of the game you've got all of the children or nearly all of the children on the court, most being taggers running up and down lines across the court and the remaining students trying to run between them? A. That's how it might sound but that's not what happens, in my opinion. There's more intensity, more collision in games like netball and basketball than there would be in table soccer."
There was a curious lack of detail in the cross-examination: the Court was not taken to any passage in which a clear alternative was put to the witness and accepted as involving a lesser risk of injury. Indeed, the case as pleaded in the amended statement of claim, so far as it related to the selection of the game, was limited to allegations of "[e]xposing the plaintiff to risk of injury which could have reasonably been avoided" and "[p]ermitting a dangerous activity to be performed by young children". [15] Each of the specific elements set out above having been properly rejected by the trial judge on the evidence, the broader case was not established.

(g) conclusions as to proposed new ground

For these reasons, the appellant failed to demonstrate any reasonable prospect of success based on the proposed new ground 3A, being the only ground in the second further amended notice of appeal which purported to challenge the refusal of the trial judge to be satisfied as to a breach of duty on the part of the School.
Thus, the appellant failed to demonstrate a sufficient level of prejudice in not being allowed to pursue her proposed amended ground. The proposed amendment was therefore rejected.

Written submissions - breach of duty

The original grounds of appeal focused squarely on the finding by the trial judge at [177], which was in the following terms: "The obvious inference from all of the evidence was that Ms Luland was momentarily distracted by something else happening on the court she was supervising, as she described."
The first ground thus identified the judge's finding as being that Ms Luland was "distracted or inattentive", which was presumably a precursor to the complaint that there was no evidence to support the inference that she was distracted by something other than what was happening on the court. However, the judge did not say that she was "inattentive". The submissions contended for such an inference on the basis that Ms Luland (a) did not see the collision; (b) did not attend to the appellant for 30 seconds or more thereafter, and (c) may not have seen the appellant until she was standing again.
The only evidence of the passage of time between the collision and when Ms Luland came to the appellant's assistance was to be found in the evidence of the appellant herself. The judge described her as an unreliable historian and it is, in any event, implausible that a child of 10 would note with any accuracy the time between a fall and when the teacher came up to her, being recounted in evidence some nine years later.
More importantly, it is difficult to identify any possible casual mechanism by which the accident could have been averted, even had Ms Luland been watching the girls as they ran. At what point she might have anticipated a collision and shouted or blown her whistle was not explored in the evidence. No submissions were made at trial as to the manner in which the teacher might have been able to intervene had she observed the collision. Assuming, contrary to the finding of the trial judge, that there was negligent inattention, it was not shown to be causally significant. Having regard to the appellant's written submissions in this regard, the challenge based on grounds 1 and 2 in the further amended notice of appeal should be rejected.
The third ground alleged a failure to give "proper reasons" in "making findings on the mechanics of the collision and explaining how the teacher was distracted".
The judge gave detailed and expansive consideration to the issues requiring resolution. What was meant precisely by "the mechanics of the collision" was not explained in the submissions. The plaintiff gave evidence that she saw the girl with whom she collided, Jessica, on her left side running "in a diagonal motion". [16] It appears she then took her eyes off Jessica and ran straight for a gap which she had identified in the line of taggers. The inference is that Jessica ran for the same gap and they collided. What more needed to be considered, in order to determine the question of liability, was not explained.
The judge did give reasons for inferring that Ms Luland had been distracted by other events at the time of the collision. There was nothing in Ms Luland's evidence which allowed a more precise identification of the point of distraction. Whilst giving evidence of her usual practice in supervising the game, she said that she did not remember what she was doing on the particular occasion of the accident involving the appellant, nor did she know whether her attention was distracted. [17] More than nine years after the event, that is unsurprising. However, the judge was required to draw inferences from the evidence. The judge accepted Ms Luland's evidence as to her practice and the adequacy of her supervision and therefore inferred that there was some other event on the court which may have drawn her attention. The term "distracted", which was not accepted by Ms Luland, was clearly not intended by the trial judge as a criticism. In any event, there was no merit in the complaint that the reasons were inadequate.
There was no basis for appellate intervention to be found in the appellant's written submissions, regardless of the fact that they were abandoned at the hearing of the appeal, with respect to the failure of the appellant to satisfy the trial judge as to the liability of the School. The same view being taken of the proposed new ground of appeal, the Court ordered that the appeal be dismissed.

Conclusion

For these reasons, the Court made the orders recorded on 15 August 2016.
PAYNE JA: I have read the draft judgment of Basten JA. I agree with his Honour's reasons for the making of orders by the Court on 15 August 2016.

Endnotes

Sanchez-Sidiropoulos v Canavan [2015] NSWSC 1139.
See [7] below.
Judgment at [108].
Judgment at [104].
Judgment at [106].
Judgment at [138].
Judgment at [138].
Judgment at [119].
Judgment at [142].
Judgment at [158].
Judgment at [162] and [167].
Tcpt, 02/12/14, p 110(40).
Tcpt, p 111(8).
Tcpt, p 138(25)-139(31).
Amended statement of claim, particulars of negligence (ii) and (viii).
Tcpt, p 30(8).
Tcpt, p 115(30)-(44). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2016

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Cited By (1)