Sharon Lee Tilyard By Her Next Friend Mary Elizabeth Tilyard v Australian Capital Territory Schools Authority and Commonwealth of Australia [1987] ACTSC 29 (15 April 1987)

SUPREME COURT OF THE ACT

SHARON LEE TILYARD by her next friend MARY ELIZABETH TILYARD v. AUSTRALIAN
CAPITAL TERRITORY SCHOOLS AUTHORITY and COMMONWEALTH OF AUSTRALIA
S.C. No. 1739 of 1983
Negligence - Pleading

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Negligence - trampoline accident at school - action against corporate body having care, control, management and supervision of school and against the authority which established the school - failure to supervise - failure to provide adequate safe equipment - failure to give adequate instructions.

Pleading - purpose of particulars - evidence outside the scope of particulars furnished.

The Commonwealth of Australia v. Introvigne [1982] HCA 40; (1981) 150 CLR 258; 41 ALR 577

Mummery v. Irvings Pty Limited [1956] HCA 45; (1956) 96 CLR 99

Anchor Products Ltd v. Hedges [1966] HCA 70; (1966) 115 CLR 493

The Wagon Mound (No. 2) [1981] UKHL 2; (1967) AC 617

Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40; 29 ALR 217

HEARING

CANBERRA
15:4:1987

ORDER

There be judgment for the plaintiff in the sum of $20,327.50.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in an accident in the school hall of Campbell High School while she was a student there on 27 October 1982.

2. According to the statement of claim the plaintiff sues the first defendant as the body corporate having the care, control, management and supervision of Campbell High School in the Australian Capital Territory and of the activities being conducted there. It is pleaded that the first defendant conducted the school on behalf of the second defendant. It is further pleaded that "the Authority and/or the Commonwealth owed a duty of care to the plaintiff by their servants and agents to take reasonable care for her safety whilst she was under their control and supervision and to protect her from foreseeable risk", and that in breach of that duty "the Authority and/or the Commonwealth by their servants and agents negligently failed to take reasonable care for the safety of the plaintiff".

3. Particulars of negligence pleaded against both defendants are:

(a) Failing adequately or sufficiently to supervise

the use by the Plaintiff of the said trampoline;

(b) Failing to be aware of or properly to appreciate
the danger which the use of the said trampoline
constituted to the Plaintiff;

(c) Failing to act as a careful parent would act
towards his or her child in similar circumstances;

(d) Permitting and/or requiring the Plaintiff to
engage in the sport of trampolining whilst there
was no sports master or other teacher in the
immediate vicinity capable of supervising the use
by the Plaintiff of the said trampoline;

(e) Failing to warn the Plaintiff either adequately or
at all of the danger of using the said trampoline
in the absence of a sports master or teacher;

(f) Failing to cause the Plaintiff to be warned that
during her use of the said trampoline, her body
moved towards the edge of the trampoline whereby
she became exposed to imminent risk of injury;

(g) Failing to have any or any adequate persons on
each side of the said trampoline, who would have
been capable of catching the Plaintiff in the
event, as was the case, of the Plaintiff falling
off that trampoline;

(h) Failing to provide any, or any adequate, mats,
pillows, or other form of cushioning on the floor
immediately below and near the edges of the said
trampoline for the purpose of stopping and/or
reducing the extent and severity of any injuries
which the Plaintiff might have sustained in the
event of a fall off the said trampoline;

(i) Failing to be aware of or properly to appreciate
the danger in which the Plaintiff was whilst she
was using the said trampoline in the absence of
any or any proper supervision, or in the absence
of any or any adequate means of preventing and/or
reducing the extent of injuries which the
Plaintiff might sustain in the event of a fall off
the said trampoline.

4. By their common defence the defendants state in paragraph 2 thereof that they do not plead to the statements contained in the statement of claim "as these statements set out matters of law only". Counsel for the defendants conceded at the end of the hearing that the defence was defective as the matters pleaded in the statement of claim were not matters of law only. It eventually emerged during addresses by counsel that the plaintiff sues the first defendant as the corporate body having the care, control, management and supervision of Campbell High School, and the second defendant as the school authority which established the school, and arranged with the first defendant to run the school on its behalf, although the cause of action against the second defendant is not so pleaded. For the purposes of the action I shall understand the plaintiff to have relied upon the authority of The Commonwealth of Australia v. Introvigne [1982] HCA 40; (1981) 150 CLR 258; 41 ALR 577.

5. It was common ground that on 27 October 1982 the plaintiff was a student at Campbell High School and was, during a sports period, engaged in the use of a trampoline under the general control and supervision of Mr Warwick Harris, a teacher employed at the school by the secondnamed defendant. Both defendants denied each and every allegation of negligence.

6. The plaintiff gave evidence that on 27 October 1982 she was attending a sport class as a student at Campbell High School. The particular activity in which she was engaged was the use of a trampoline. She was 16 years of age at the time, having been born on 28 February 1966. The accident happened during the third term at school and the plaintiff had already been involved in trampolining in the first and second terms of that school year, which was Year 10. The evidence establishes that on the relevant day the trampoline in use was about 12 feet by 6 feet in dimensions, about 5 feet off the floor and consisting of a blue metal frame and a cream mat.

7. I find that the accident happened in the following way. While the plaintiff was doing some basic skills on the trampoline, one of the students situated around the trampoline spoke to her, the plaintiff moved towards that person to respond and, as she did, she was thrown off balance by the bounce of the trampoline, her foot caught in the corner of the trampoline, which swung her around and caused her to fall, hitting herself between her legs on the metal frame and then landing hard on her left elbow on the wooden floor. When she hit the floor she looked and saw that her arm was in a distorted position, which caused her to scream. Students were calling out for the teacher and the plaintiff screamed again. She suffered feelings of sheer terror, she had pain in her crotch but worse pain in her arm.

Failure to supervise

8. The plaintiff said that the first person on the scene was the janitor, who did not come until about two or three minutes had passed. Then a first-aid lady came and then the teacher. He seemed to take a considerable time to get there.

9. In cross-examination the plaintiff agreed that Mr Harris had been present observing those using the trampoline when they commenced, but she maintained that he left and went to the other end of the hall where the students using the vaulting horse were. She denied that Mr Harris was there with the vaulters when she had her accident. She said that she had not seen him leave the room but did not believe that he was in the room because after the accident he took so long to arrive and the others were asking where he was. He was certainly not on the scene within 30 seconds of her fall.

10. I digress from the plaintiff's evidence to deal with the evidence of Miss Emma Strand, another student who gave evidence on behalf of the plaintiff, and the evidence of Mr Harris, who gave evidence on behalf of the defendants. Miss Strand said that when the plaintiff suffered her accident there was no teacher in the room. She said that she had seen Mr Harris leave quite a few minutes before. After the accident happened the janitor came in after about a minute and then Mr Harris came after what seemed like a long time. She was adamant in cross-examination that she had seen Mr Harris leave the room and that he had not returned to the room when the accident happened.

11. Mr Harris' evidence was to the contrary. He said that he had split the class of fifteen students into two groups, seven to the trampoline and eight to vaulting. After giving the trampoline group some instructions about placing some of their number on each side of the trampoline, and about only practising their basic skills, he watched a couple of the students doing that, then went to the other side of the school hall to supervise the group using the vaulting horse. He heard a noise, turned around and saw the plaintiff lying on the floor. He hurried over to the plaintiff, saw that her arm was at a funny angle, sent a student to get the first-aid lady and, after she arrived, went himself to check that an ambulance was on its way and arrangements were in train to make contact with a parent of the plaintiff. He was equally adamant that he had not left the hall between the start of the lesson and the accident. He could not remember the janitor being there at all but confirmed that the first-aid lady had attended.

12. It is necessary to make a finding of fact about whether Mr Harris was present in the school hall or not when the accident happened. If he was not, there was no one supervising the activities of the students, including the plaintiff, on the trampoline. If he was in the hall supervising those students engaged in vaulting, it would be some evidence that he was nevertheless supervising the students using the trampoline, although the nature and adequacy of that supervision are relevant considerations.

13. I was impressed with Mr Harris on this aspect of his evidence. He maintained that he had remained with the trampoline group for about five or ten minutes before he moved to supervise the vaulting group and that he had not left the hall. It seems to me to be somewhat unlikely that he would have left the students completely unsupervised when they were engaged in two risk activities. So far as the plaintiff's evidence is concerned, I think that she is mistaken in her evidence that Mr Harris had left the room. I think she has made a mistaken deduction that he was not in the room because of her impression that he took so long to arrive and because the others were asking where he was. She had just received a very severe shock at the sight of her obvious arm injury and was in an extremely frightened state. So far as Miss Strand is concerned, I can only conclude that she was mistaken in her evidence that Mr Harris left the hall and had not come back up to the time of the accident.

14. I find that when the plaintiff fell Mr Harris was supervising students doing handsprings with the use of a mini trampoline and vaulting horse and that those students were performing that exercise repeatedly and continuously. He did not see the plaintiff fall. His attention was attracted by the noise of her fall. He acted promptly and appropriately.

15. It was normal practice for a class to be split and for more than one activity to be engaged in by different groups. While supervising those doing the vaulting exercise, Mr Harris was also supervising the plaintiff's group on the trampoline. This aspect of the plaintiff's claim fails.

Failure to provide adequate safe equipment

16. There was also a serious issue of fact between the plaintiff and the defendants about the safety of the equipment in use. The plaintiff said in evidence that the trampoline in use was standing on a wooden floor, that there was no padding or covering on the metal frame of the trampoline and that there were no mats on the floor around the trampoline to cushion the fall of any student who fell off the trampoline. Miss Strand gave evidence to the same effect.

17. In addition, Miss Ingrid Stitt, another student in the same year as the plaintiff and who had suffered a trampoline accident at the school on 26 August 1982, just two months before the plaintiff's accident, gave evidence that the trampoline on which she had her accident had padding on the sides but no vinyl covers at the corners. Shown a photograph ultimately put in evidence by the defendants, she said that it did not depict the padding that she had given evidence about, that the vinyl covers at the corners of the trampoline as depicted in the photograph had been absent from the trampoline from which she fell and that the springs on that trampoline were exposed.

18. The evidence does not establish that Miss Stitt was referring to the same trampoline as the plaintiff was using when she had her accident. There were apparently at least two trampolines in the school. She herself was not present when the plaintiff had her accident on 27 October 1982.

19. In relation to the trampoline the plaintiff was using, Mr Harris maintained that there was padding on the bars of the trampoline and vinyl covers at the corners. He said that the trampoline in use was remarkably similar to the trampoline depicted in the photograph put in evidence by the defendants. No evidence was proferred on behalf of the defendants about the trampoline depicted in the photograph.

20. Mr Alan Scrymgeour, a physical education teacher employed at the Woden Special School in Deakin in the Australian Capital Territory, gave evidence on behalf of the defendants. On being shown the photograph of the trampoline which Mr Harris had identified as being remarkably similar to the one in use, Mr Scrymgeour said that the trampoline depicted was an Acromat trampoline with standard padding. He said that the padding depicted in the photograph was often bought with the trampoline, if the school concerned was rich. He also said that it was possible, although expensive, to buy padding which not only went around the sides of the trampoline but also around the corners. Alternatively it would have been possible and practicable to improvise some form of inexpensive padding to go around the corners and thus lessen the likelihood of a student putting her foot between the mat and the frame and falling on to the unpadded metal frame.

21. In addition, there was the evidence of Mr David Wareham, President of the Australian Amateur Trampolining Association, called on behalf of the plaintiff. His qualifications and experience over 20 years were not in dispute. He said that in teaching students of 16 years of age or so it is sound, safe practice to have good equipment, properly assembled and sited with additional safety devices such as foam padding around the frame and mats around the trampoline when available.

22. I find on the balance of probabilities that the trampoline being used by the plaintiff at the relevant time did not have padding as depicted in the photograph and indeed did not have any padding at all. In particular it did not have any padding at the corner of the trampoline which the plaintiff straddled in the course of her fall to the floor.

23. The other aspect of the plaintiff's claim based upon failure to provide adequate equipment was the absence of mats on the floor around the trampoline to cushion the fall of any person falling from the trampoline. It was common ground that when the plaintiff fell there were no mats of any type on the floor around the trampoline, although they were available in the school hall.

24. I find on the evidence of Dr Colin Andrews, neuro-physician, that mats would have lessened the risk of injury to the plaintiff's left arm.

Failure to give adequate instructions

25. Because of the conclusion I have reached about the safety of the equipment provided it is unnecessary to dilate upon the evidence relating to the defendant's alleged failure to give the plaintiff adequate instructions.

26. I am not satisfied on the balance of probabilities that there was any failure on the part of the defendants to give adequate instructions to the plaintiff. Nor am I satisfied that, if there was any such failure, it had any causal relationship to the accident.

The Particulars

27. I have already intimated that the statement of claim is inelegant, even inartistic. The function of particulars is to limit the issues of fact to be investigated by the defendant, or to show what will be put forward as constituting the case which has been pleaded. Nevertheless the plaintiff's action is still for the specified breach of duty by both defendants and they cannot defeat the plaintiff's claim by establishing that the plaintiff's injuries either resulted from or were consistent with some other breach of the same duty. If the facts, as proved in the case, lead to the conclusion that the injuries resulted either from one or the other, the plaintiff will succeed (Mummery v. Irvings Pty Limited [1956] HCA 45; (1956) 96 CLR 99 at 110). It matters not whether the cause of an occurrence be established by evidence led for the plaintiff or for the defendant so long as the cause is fully revealed by evidence which is accepted (Anchor Products Ltd v. Hedges [1966] HCA 70; (1966) 115 CLR 493 per Windeyer J. at 498).

28. Whilst failure to provide mats on the floor has been particularised, failure to provide padding on the bars and corners of the trampoline has not.

Negligence

29. In order to succeed the plaintiff must prove a foreseeable risk of injury which was real and not merely fanciful, remote, trivial or inconsiderable. "A person must be regarded as negligent if he does not take steps to eliminate a risk which he knows and ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man" per Lord Reid in The Wagon Mound (No. 2) [1981] UKHL 2; (1967) AC 617. A risk of injury is foreseeable so long as it is not far-fetched or fanciful notwithstanding that it is more probable than not that it will not occur (Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40; 29 ALR 217; Commonwealth v. Introvigne, supra, per Mason J. (as he then was) at CLR p 267; ALR 584).

30. The provision of padding to the bars and corners of the trampoline was a reasonable and practicable step to take in order to eliminate the risk of injury to the plaintiff, which risk was reasonably foreseeable by the defendants. I find negligence by both defendants in that respect.

Damages

31. The plaintiff was taken by ambulance to the casualty section of the Royal Canberra Hospital. Her left elbow was X-rayed and a fracture dislocation was diagnosed. The treatment carried out in the casualty department was a closed reduction of the dislocation under a regional block.

32. While at the hospital the plaintiff could not stop crying and was very upset. She noticed that her left hand was going numb. She had severe pain in the crotch area and was bruised and swollen. She was very tender in that area for about a week but that particular injury eventually subsided. She had an irregular menstrual cycle for about three months and suffered some anxiety about whether her childbearing capability had been affected. She was relieved by advice that she was given in this respect.

33. She was not admitted to hospital after having the dislocation reduced, but the next day she went back to hospital because her hand was going numb. The brace which had been applied on the day of the accident was loosened.

34. She was seen by Dr R.J. Kitchin, orthopaedic surgeon, on 4 November 1982 at the Fracture Clinic of the Royal Canberra Hospital. She was admitted to hospital and on 5 November 1982 Dr Kitchin carried out an open reduction operation. The ulnar nerve was freed, the dislocation relocated, fragments of the fractured medial epicondyle were relocated and sutured in position and the forearm was immobilised in plaster. After two weeks the plaster cast was removed, the stitches in the operation site removed and another plaster cast put on the arm for another two weeks. There then followed a long period of physiotherapy treatment designed to improve the function of the left arm. There was not much improvement for five or six months. She went back to the Royal Canberra Hospital for review by the hospital on ten occasions and by Dr Kitchin on four occasions. She had twenty-three physiotherapy treatments and found some of the exercises she was required to perform painful. It was about ten months before she could straighten the elbow.

35. Dr Kitchin's report of 13 February 1984, which was in evidence, states that by 18 August 1983 the range of movement at the elbow joint was 8 degrees to 136 degrees (normal 0 degrees to 140 degrees). By 2 November 1983 she had regained near full range of elbow movement with full rotation. The ulnar nerve recovery continued. She still has some altered sensation in the third and fourth fingers of the left hand with some mild weakness of those fingers. She has, however, made a good recovery. There is no significant wasting and any weakness is only minimal. She has an operative scar along the medion side of the left elbow which is well healed and not embarrassing cosmetically. The scar is about five inches long.

36. The plaintiff also suffered neck pain for a couple of hours a day every couple of months after the accident for about a year. This disability has now disappeared. She now has a good range of neck movement. In the report of Dr I.L. Ferguson, who examined the plaintiff for medico-legal purposes on 20 December 1983 and 26 July 1984, Dr Ferguson expresses the opinion that the plaintiff suffered subluxation and instability of her cervical spine which has caused bouts of neck pain. Dr Ferguson was not called to give evidence and I do not accept his opinion that the plaintiff suffered subluxation of the cervical spine. That is not to say that I do not accept the plaintiff's complaints of pain in that area.

37. She also suffered headaches for about a year after the accident and some feelings of dizziness. She was also somewhat irritiable and upset.

38. The plaintiff also gave evidence that after the accident her jaw would click. This lasted for a couple of months. I am not satisfied that the accident had anything to do with that condition. Similarly, I am not persuaded that the buzzing in the ears which she suffered for a couple of months was related to the accident.

39. On leaving school the plaintiff originally intended to be a stenographer, but because of the injury to her elbow and loss of sensitivity in the third and fourth fingers of the left hand she was advised against it. Accordingly, on attaining her higher school certificate, she went into clerical work. As a Clerical Assistant Grade 4, acting Clerk Grade 6, she earns more than she would have been earning as a stenographer. She enjoys her work and intends to stay in the Department of Defence.

40. For pain and suffering, inconvenience, loss of amenities and all the other matters I am required to take into account on the question of general damages, I provisionally assess the sum of $15,000.

41. Hospital and medical expenses were agreed at $1,577.50.

42. There is a claim for past economic loss. At the time of the accident the plaintiff was working part-time in a newsagency averaging about $30 per week. After the accident she could not do that work. She resumed employment in a ladie's clothing store in January 1984. The evidence does not clearly establish that the plaintiff would have worked in the six months following the accident. She frankly stated in evidence that whether she continued working depended upon whether she went on holidays and on how she felt. I think it is reasonable to allow the plaintiff $750 for past loss of earnings.

43. For the purposes of calculating interest, I apportion $10,000 of the general damages to the past and $5,000 to the future. I add to the sum of $10,000 the assessed sum for past economic loss and apply an interest rate of 14% from the date of the accident to today. This yields a figure of just over $3,000. I round that figure off to $3,000 and provisionally assess that sum for interest.

44. My provisional assessments therefore are:

General damages $15,000.00
Agreed medical expenses 1,577.50
Past economic loss 750.00
Interest on general damages
and past economic loss 3,000.00
Total $20,327.50

I have considered this figure as a global sum and confirm my provisional assessments.

45. There will be judgment for the plaintiff in the sum of $20,327.50.