Lee-Anne Duncan by her next friend Noel Duncan v Trustees of The Roman Catholic Church for The Archdiocese of Canberra and Goulburn [1998] ACTSC 109 (14 October 1998)

Last Updated: 13 October 1999

LEE-ANNE DUNCAN by her next friend NOEL DUNCAN v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN [1998] SCACT 109 (14 OCTOBER 1998)

CATCHWORDS

NEGLIGENCE - school authorities - vicarious liability - plaintiff suffered back injury from fall after attempting handstand in gymnastics class - whether teacher negligent in failing to take reasonable care for the safety of students - whether school vicariously liable for student aides acting as spotters during gymnastics class - school vicariously liable for negligence of teacher in failing to adequately reinforce safety instructions before gymnastics class - no issue of principle.

Commonwealth of Australia v Introvigne [1982] HCA 40; (1981) 150 CLR 258 at 270, applied

Robertson v Hobart Police and Citizens' Youth Club [1984] TasR (N.C.4); (1984) Australian Torts Reports 80-629, applied

Bills v State of South Australia (1985) 38 SASR 80, considered

Pratt v Patrick and Others [1924] 1 KB 488, applied

Ormrod v Crosville Motor Services Ltd [1953] I WLR 409; affd CA [1953] 1 WLR 1120, applied

Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Bugden v Rogers (1993) Australian Torts Reports 81-246, applied

Grincelis v House (1998) 156 ALR 443, applied

M.B.P. (S.A.) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657, applied

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, considered

No. SC 101 of 1995

Coram: Higgins J

Supreme Court of the ACT

Date: 14 October 1998

IN THE SUPREME COURT OF THE )

) No. SC 101 of 1995

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LEE-ANNE DUNCAN

By her next friend

NOEL DUNCAN

Plaintiff

AND: TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN

Defendant

ORDER

Judge Making Order: Higgins J

Where Made: Canberra

Date of Order: 14 October 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the Plaintiff in the sum of $104,567.45.

1. The plaintiff, on 11 August 1992, was a student in Year 7 at Merici College, Canberra. She was then aged 13 years 5 months. Merici College is a high school for girls conducted by the defendant. Part of the course of instruction for the plaintiff and her class mates was physical education.

2. The class, on that day, was conducted by Ms Joanne Roberts. There is no challenge to Ms Roberts' qualifications to conduct such a class. She had 26 girls in her charge, including the plaintiff. It is common ground that her objective on that day included teaching the girls how to perform a handstand.

3. She was aware that whilst some girls had gymnastic experience, many had not. She did not know if the plaintiff was particularly skilled but she did regard her as "quite co-ordinated".

4. Gymnastics had been introduced to the students on 4 August 1992. Ms Roberts did not profess to have any particular recollection of what occurred on that date. However, her diary suggested to her that she had instructed the girls in a number of "dos and don'ts". It was her practice to tell them that spatial awareness was important, that activities were to be conducted only on her command and that they were to stop on her whistle. The role of spotters was explained. These were to be students selected to help or aid a balance, vault, or routine. She would, in the case of one-on-one routines or balances, try to match in size the spotter and the student performing the routine. She felt that she would have emphasised that the spotter is responsible for supporting her friend.

5. There were two gymnastic classes before 11 August. On 6 August an inspirational video of Olympic gymnastics was shown. On 7 August a number of balances were shown and undertaken.

6. For 11 August 1992 Ms Roberts intended to demonstrate and have students perform forward rolls and handstands. The lesson was to commence with warm-up exercises.

7. It was Ms Roberts' belief that the handstand exercise preceded the forward rolls. There had been a demonstration where one student with previous gymnastics experience demonstrated how to kick up into the handstand position whilst Ms Roberts demonstrated how to support the student doing the handstand.

8. She said that she held the student by the hips, facing her back. The handstand was approached by the student facing the spotter crouching down on all fours into a "bunny" position, then kicking her legs up to the vertical position.

9. After that demonstration, she instructed the girls to pair off. The plaintiff paired off with a friend of hers, Kate Maxwell.

10. Ms Roberts' recollection - and she had 12 or 13 pairs of girls to supervise - was of seeing the plaintiff kick up to what appeared to be a good handstand.

11. Kate Maxwell was supporting her. She looked elsewhere. She then noticed Kate "step back" and saw the plaintiff fall flat on her back. Clearly, it was a heavy fall.

12. There was a matted area set up for the gymnastic exercises. The plaintiff and Ms Maxwell were on one corner area. A number of 5' x 4' mats were held together by velcro strips. There is nothing to suggest that the mats themselves contributed to the fall. However, because the area where the plaintiff fell was next to the wooden floor surface, there was a suggestion that she fell so that her legs were off the matted surface and on the wooden floor. Ms Roberts does not support that view. She recollects the plaintiff after the fall lying wholly on the mat, though near the wooden surface.

13. Ms Roberts followed proper first aid procedure. She ensured no-one moved the plaintiff; she enquired as to lack of feeling. She found that the plaintiff could feel her fingers and toes. She instructed someone to call an ambulance.

14. It was the plaintiff's evidence that, when she kicked up into the handstand, she felt Kate take her by the ankles. She did not recall what specific instruction had been given to the spotters. Kate then suddenly let go. She overbalanced and crashed heavily onto her back partly on the mat. She then rolled over into what she called a "foetal position" and lay still. She felt "numb all over". She was shocked and worried.

15. She recalled ambulance officers attending. She was placed on a spinal board and a cervical collar was put in place. That would seem, primarily, to have been a precaution to avoid spinal cord damage. During the next six to seven hours, fortunately, feeling returned, though some residual "pins and needles" remained in her legs, feet and arms.

16. In cross-examination, the plaintiff conceded that she had done handstands herself before 11 August. She attributed the fall to the sudden withdrawal of support. She had not expected that until the teacher had signalled the end of the exercise. That was not challenged as unreasonable.

17. There was some cross-examination directed to whether the plaintiff fell wholly onto the mat or not. She had reported, at Woden Valley Hospital that she had "landed on a foam mat while performing a handstand". She had told Dr Gray, a general practitioner eight to nine days later that she "fell onto a gymnastics mat while doing a handstand at school".

18. A fellow student, Ms Belinda Jane Rollins gave evidence that after the fall, the plaintiff was "on the mat".

19. I do not think anything turns on this question. Each of the three witnesses impressed me as endeavouring to tell the truth as they recalled it. Ms Roberts, of course, did not purport to recall all details. The plaintiff had suffered a serious fall and Ms Rollins, though not involved directly, had only her unaided recollection to rely upon until some years after the event.

20. It seems to me that the plaintiff might well have fallen, as she says, partly onto the floor. She may well, as part of the impact, have rolled back, coming to rest on the mat in a foetal position, as she described it. Attention would have been drawn to her, very probably, by the impact of the fall. Nevertheless, I do not think anything turns on this. To the extent her legs fell onto the floor - and it is not suggested her back did - that would not have made any difference to whether she was injured or not. Indeed, no medical practitioner has expressed the view that her injuries and ongoing disabilities are the worse for not falling wholly on the mat, if that occurred, or are inconsistent with, or even unlikely to occur in, a fall flat onto a gymnastic mat.

21. In cross-examination, Ms Roberts conceded that she had no recollection of observing precisely where Ms Maxwell took hold of the plaintiff when the latter kicked up into a handstand position. She did agree that to take hold of the ankles would invite instability. To let go would be dangerous and likely, even with the mat in place, to cause injury.

22. She did recall saying to Kate afterwards words to the effect "that was not the way to do the exercise". She could not recall precisely what she meant by that remark, though as she had formed the view that Kate had let go and moved away without warning, that may have been what she meant.

23. It was suggested to her that either two spotters or herself as spotter for each girl in turn would have been safer. Ms Roberts did not agree that such measures, though self-evidently less risky, would be practicable. I am inclined to agree with her.

24. Ms Roberts, however, conceded that she had not specifically instructed the spotters not to step back or step away whilst supporting a fellow student.

25. There was a note Ms Roberts had made referring to Kate Maxwell holding the plaintiff by "the hips". That is contradicted by the plaintiff. However, the explanation may well be that Ms Maxwell moved her hands forward to support the plaintiff as she kicked up and either moved up to the ankles directly or after pausing at the hips. Having twelve or thirteen pairs of students to observe, it is likely Ms Roberts assumed that her instructions would be understood and obeyed. I cannot find that Kate Maxwell did take hold of the plaintiff's hips at first. For some reason, I am persuaded she had hold of the plaintiff's ankles but whether with one hand or two is not clear to me.

26. The difficulty in being definite is further illustrated by Ms Rollins' evidence.

27. She agreed, generally, with Ms Roberts recollection and diary notes of the lesson. She clearly recalled that the students were warned that there was a risk of injury if the rules were not obeyed.

28. However, her recollection of the demonstration of the role of the spotter was significantly different from Ms Roberts'.

29. Her recollection of the demonstration of the "correct" position was that the teacher stood to one side of the gymnast with one hand on the upper thigh and the other on the ankles. She recalled being told not to stand behind the subject but to be close and ready to catch her if she fell. She was told that to hold the subject in the wrong position would result in injury. She was shown not to hold the subject only by the ankles and that, she said in cross-examination, was demonstrated.

30. Ms Roberts was quite clear that her instruction was to the contrary, not only of what Ms Rollins understood but also of what Ms Maxwell did. It is clear to me that each of Ms Rollins and Ms Maxwell confused a demonstration of what not to do with the preferred and safer method that Ms Roberts described in her evidence. Each of the two students had focussed on a different "don't" and took it to be that which was recommended. In addition Ms Maxwell failed to comply with Ms Roberts' general instruction not to cease the exercise until she signalled.

31. Ms Maxwell did not give evidence. The plaintiff was facing away from her. However, Ms Roberts' evidence seems to me to indicate that Ms Maxwell either understood she was to let go once the stand was effected, or she lost her grip due to the plaintiff losing balance. I think the latter more likely. Ms Roberts had no doubt about Ms Maxwell's concern to do as she was told. She would not have embarked on some frolic which would have placed her friend at risk. The latter view would also explain the plaintiff's recall that the initial fall was partly off the mat. They had started, I infer, parallel to the edge. Ms Roberts had so instructed them. Thus a degree of rotation, due to a grip on one ankle being maintained over part of the fall would seem more likely.

32. Ms Roberts could not recall her instructions precisely. I have no doubt she did demonstrate the correct stance for spotters as she described it. She also demonstrated incorrect stances. I have evidence supporting at least two such incorrect stances being demonstrated. However, it is apparent that the message was misunderstood by at least two of the twelve or thirteen would-be spotters.

33. There is nothing wrong with the syllabus or the physical education course. It was reasonable to use students as spotters and one-on-one. However, it was, as a result, essential to ensure that the correct message was understood. The risk of injury if a handstand went wrong was so great as to require that.

34. Ms Roberts was aware that members of the Year 7 class had no prior experience of gymnastics. She agreed that Year 7 girls needed "constant reinforcement" of instructions. It is apparent that she did not ensure that her instructions were correctly understood by all spotters before the subjects were told to perform their handstands. To ask each of the twelve or thirteen spotters to demonstrate in turn their proposed stance would have taken only a minute or so. It would have reassured Ms Roberts that they understood their role. Unfortunately, this was not done. Her instructions were misunderstood and the injury to the plaintiff followed. It would probably not have occurred had Ms Maxwell correctly understood Ms Roberts' instructions.

Liability for failure of teacher to reinforce proper safety instructions.

35. The general duty of care by a school towards its students requires that reasonable care be taken for their safety. It does not require it to ensure that no harm comes to them.

36. Mason J in Commonwealth of Australia v Introvigne [1982] HCA 40; (1981) 150 CLR 258 at 270 described it as:

"...a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated."

37. Introvigne's case involved injury caused to the plaintiff when he and other students swung on a halyard dislodging the truck on top of a flag pole which later struck and injured the plaintiff.

38. A failure to supervise student activities is not necessarily negligent. For example, in Robertson v Hobart Police and Citizens' Youth Club [1984] TasR (N.C.4); (1984) Australian Torts Reports 80-629, a 12 year old fell awkwardly during trampolining at the Club. It was held that it was not negligent to fail to supervise the use of the trampoline on a full time basis. It was, however, negligent not to ensure that she was adequately instructed on how to safely land on the trampoline. The duty was held to be analogous to that of a school towards a pupil.

39. By way of contrast, in Bills v State of South Australia (1985) 38 SASR 80, after having instructed pupils to cease trampolining, a teacher left the area. Whilst unsupervised, the plaintiff used the trampoline and was injured. However, whilst the trial judge thought otherwise, the Full Court considered that, as there was no reason to suppose disobedience, the school was not liable.

40. In the present case, of course, Ms Roberts was not required to assume that there would be a deliberate disobedience to her instructions. The risk was of a lack of comprehension or application of her instructions. The means to reduce the risk of that lack of comprehension or application were reasonably practicable. They should have been put into effect. The failure to do so seems to me to have been negligent.

41. But for that negligence, the injury suffered by the plaintiff probably would not have occurred.

42. Even if, contrary to my view, it should be considered that Ms Roberts had no reason to suppose that her instructions would be misunderstood or not comprehended, it is clear that the spotters were being used as assistants to aid the school in teaching the handstand exercise. It was clearly contemplated by the school that other students would be used, after instruction, as spotters. Ms Maxwell did not act otherwise than as authorised by the school's agent, Ms Roberts. She was not acting merely on her own behalf. Vicarious liability does not attach only to the actions of paid employees and agents. It applies also to volunteers.

43. Pratt v Patrick [1924] 1 KB 488 is an example where a friend of the owner of a motor vehicle was permitted to drive it. He was driving it, though a volunteer, under the control of the owner.

44. In that case, the owner neither caused, nor otherwise contributed, to the negligence of the driver but had not divested himself of possession and control of the vehicle. Hence he was vicariously liable for the negligence of the driver.

45. Acting on behalf of the owner, as in Ormrod v Crosville Motor Services Ltd [1953] 1 WLR 409; affd CA [1953] 1 WLR 1120, will carry with it vicarious liability for the negligence of the driver. In this case each spotter was carrying out the instruction of, and acting on behalf of, Ms Roberts and, hence, the defendant. A recent example of such a situation is Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Australian Torts Reports 81-246.

46. As long as they were acting within the scope of that authority, Ms Roberts and, therefore, the school is vicariously liable for the negligence of any spotter.

47. Thus, whether or not a lack of proper instruction led to Ms Maxwell failing properly to support the plaintiff, the defendant is liable for her lack of care.

48. It was not suggested that there was any contributory negligence on the part of the plaintiff. No such defence was pleaded.

49. I therefore turn to the question of damages.

Damages

50. At the hospital, on the day of the accident, the plaintiff was examined. There was found to be a slight anterior wedging of several mid-thoracic vertebral bodies on X-ray.

51. Initially, the plaintiff was absent from school for three days. After the initial numbness and weakness, pain appeared in the lower back. Then it appeared also in the mid-thoracic region.

52. She saw Dr Phillip Gray, her General Practitioner, on 20 August 1992. She was prescribed Panadeine forte.

53. Over the remainder of the month, she did return to school but found bus travel aggravated her back pain.

54. The remainder of the year followed a similar pattern. Overall she lost 35 days following the accident which she attributes to her back pain.

55. Additionally, she lost some parts of days due to aggravation of back pain whilst at school.

56. Her second semester school reports indicate considerable negative impact on her results due to her extensive absences on account of "poor health", "illness", "injury".

57. The defendant did argue that the plaintiff's history revealed earlier frequent absences from school. That must be acknowledged. However, many of those absences were due to adventitious injury. Further, comments from teachers consistently revealed a conscientious, well motivated student unlikely to absent herself without good reason from classes. That does not mean to say that every subsequent absence should be attributed to back pain following the fall, but it is fair, I think, to assume that the illnesses and injuries of first semester in Year 7 were unlikely to have been repeated in subsequent semesters.

58. It follows that, while for subsequent years some unrelated absences would have occurred, if, in fact, absences were due to back pain resulting from the fall, that should be regarded as a consequence of the negligence of the defendant.

59. During 1993, the plaintiff continued to suffer back pain. She was referred to Dr Ashman, an orthopaedic surgeon. He recommended that she refrain from usual sports. She was referred for physiotherapy.

60. In July 1993 she was provided with a TENS machine as physiotherapy had not been successful. It was an attempt to avoid reliance on Panadeine forte. The TENS machine gave some relief but the plaintiff found it "very distracting".

61. She was then referred to Dr Lithgow, a pain management specialist. She had two courses of lumbar facet joint injections in three places. They caused further pain rather than relief. She had hydrotherapy as well.

62. During 1993 she had 35 absences from school which she attributed to back pain. Again, her school reports acknowledged the adverse effects of these absences. However, her results were satisfactory notwithstanding this.

63. The plaintiff was in Year 9 in 1994. She was given a back brace to assist with her continuing back pain. She found it uncomfortable but it gave better support. There were 31 days of absence which she attributed to back pain. It should be added that other partial absences continued to occur. That is corroborated by reference to class absence records. She felt that Mathematics, Biology and English were particularly adversely affected.

64. Towards the end of 1994 and beginning of 1995 she suffered increased pain. It now extended from her shoulder blades into her neck. It seemed to be associated with periods when the lower back pain was worse. She also complained that right-sided migraines appeared leading to nausea when back pain was worse.

65. It does appear that before her fall the plaintiff had suffered migraines. It seems that, while the back pain provides an added "trigger" for migraines, it is not the cause of them.

66. By this time the plaintiff had reduced the tasks she otherwise performed about the house. However, it does not seem that, by and large, she required personal assistance.

67. In 1995 the plaintiff was in Year 10 at Merici College. She had continuing counselling for pain management including occupational therapy assessment. She obtained part-time work at a video shop at Karabar, Queanbeyan. Initially this was for three to ten hours per week. The standing and walking for extended periods did aggravate pain. During 1995 she was absent for 23 full days which she attributes to back pain. Her school assessments remained similar.

68. Early in 1996, Dr Gray referred the plaintiff to Dr Champion, a rheumatologist specialising in musculoskeletal pain management. He made certain recommendations including the use of a special chair. That was used by the plaintiff at school. It did provide better support but the plaintiff found it embarrassing to wheel it around from class to class.

69. During that year the plaintiff had 41 days absent. Again, reports suggest that her effort was conscientious, she displayed aptitude, but results suffered due to absences. The plaintiff felt Mathematics and English particularly suffered. She was doing the minimum tertiary package.

70. In 1997 the plaintiff completed her final year at school. She attempted a number of occupational aptitude tests. She rejected secretarial based prospects due to difficulty sitting at and concentrating on a computer. Her work experience in occupational therapy was quite satisfactory. She coped with it, at least as a work experience student. Her supervisor's report was, it seems, quite favourable. During that year 41 days of absences due to back pain and a bad bout of flu, contributed to a disappointing result of 47.35.

71. I agree with the plaintiff's own assessment, supported by her school reports, that such a result does greatly understate her talent. Further, even making allowances for other possible causes for absences from school, I am satisfied that back pain was the most significant cause of this result.

72. During this year the plaintiff enrolled at the University of Canberra for a Bachelor of Community Education. Her enrolment was assisted by Merici College requesting special consideration for her. Additionally, she was referred to the University Disability Liaison Officer for advice and assistance.

73. Nevertheless, her chronic pain has not significantly improved. It is subject to exacerbation with any minor physical provocation. As a result, in May 1998 the plaintiff felt obliged to drop a full year subject "Introduction to Public Relations and Marketing". Her absenteeism due to pain was the primary reason for that. However, she has also been advised to enrol in a holiday grammar and writing course. This may well extend her course by one academic year.

74. The plaintiff did concede that, though she experiences a constant level of pain, she has been able to hold her part-time video store job. She does go out socially, though she limits her physical activities. In October 1994 she had participated in an excursion to the South Island of New Zealand. It involved a lot of hiking. She could travel at her own pace. However, the exertion exacerbated her pain so that she could not take part in evening social activities.

75. In my view the account of the New Zealand excursion provides a good guide as to the general level of disability the plaintiff has suffered following the fall.

76. It is a significant but not crippling disability. It inhibits her employability and probably made the difference between her present career choice and that which she had preferred.

77. She has, at present, as Mr Deakin QC for the defendant conceded, a one year delay in place which may be attributed to the fall. That will, of course have a "ripple" effect into the future.

78. A further issue, however, was as to the true cause of the plaintiff's disabilities. There is, it is conceded, no sufficient bony injury to account for the plaintiff's ongoing symptoms. It was not suggested that she was feigning her disabilities. Nor was it suggested overtly that she was exaggerating.

79. My impression was that she seemed, as her school assessments agreed, an open and honest young woman doing her best to cope with a level of pain that frequently became quite severe.

80. Her disabilities, if they persist, will limit her employment choices; sitting or standing for lengthy periods without relief will not be open to her. Physical activity, such as lifting significant weights, bending or twisting, is precluded.

81. Dr Bryan Ashman first saw the plaintiff on 11 January 1993. The absence of bony injury visible on X-ray led him, in his report of July 1994, to conclude that the plaintiff had suffered "back strain". However, the persistence of symptoms led him then to conclude:

"My final diagnosis in this lady was a chronic pain syndrome in the lumbar spine precipitated by a soft tissue injury to the area in August 1992."

82. "Chronic pain syndrome", it should be added, is a descriptive diagnosis. It reflects a conclusion that pain is persistent but no physical cause can be specified.

83. Dr Ashman was optimistic as to future improvement.

84. Dr Tom Lithgow offered no further enlightenment as to the mechanism responsible for the continuing pain. He offered the view, in his report of 23 September 1994, that "...it is probable that there was an initiating soft-tissue injury at the time of the fall which has set in train the chronic pain process".

85. There is no explanation in that report as to what Dr Lithgow considers to be "the chronic pain process". He was, however, confident that, there having been "improvement", the long-term prognosis was "good".

86. Dr Roderick McEwin, specialist physician, examined the plaintiff for medico-legal purposes in October 1995. He noted that constant low back pain was continuing, worsened by use of the back. Dr McEwin diagnosed a "chronic musculo ligamentous strain of the lumbar and thoracic spine". He hoped for a recovery over the "next year or two" with "conservative treatment". He reviewed her again in November 1997. The plaintiff reported no improvement. The detailed account then recorded by Dr McEwin of the extent of the plaintiff's disabilities seems consistent with her evidence before me.

87. Dr McEwin considered that "chronic (spinal) pain syndrome" was a "reasonable diagnosis". He noted that there had been a diagnosis of chronic "reactive depression" by Dr Hugh Veness, a psychiatrist.

88. In Dr McEwin's opinion:

"...psychological or psychiatric help is necessary for her to enable her to recover from the vicious circle she is presently in of increased pain causing detrimental effects to her enjoyment of life, resulting in tension, causing more pain."

89. The latter phenomenon Dr McEwin considered to be an impediment to further recovery but he was guardedly optimistic of future recovery.

90. Dr Veness concluded in his report of 20 August 1996, that the plaintiff's history and physical signs were "typical of a painful condition known as fibromyalgia". That condition, Dr Veness concluded, was caused by the fall and would last "indefinitely". Emotional tension, including anxiety, would exacerbate the pain. There was, also, a "fluctuating Reactive Depression as well as abnormal levels of anxiety". That is in direct response to pain. Although Dr Veness does not suggest that this condition arises independently of real levels of experienced pain, he concludes that the plaintiff is at risk of developing a major depressive illness.

91. It is apparent, however, that Dr Veness does not conclude that the plaintiff's pain is of psychosomatic origin.

92. Apart from continuing pain and disability as a source of anxiety, the plaintiff has, even before the fall, been conscious of her father's ongoing and long-standing serious health problems.

93. Dr David Champion submitted several reports and also gave evidence. He has impressive credentials in pain management. That includes, particularly, the diagnosis of the cause of chronic pain. He saw the plaintiff first at Dr Gray's request on 1 February 1996. He concluded that she had a "post injury chronic spinal pain syndrome with somatic and neuropathic components". He found objective signs supporting neuropathic involvement. He found psychological factors playing some role but not a major one. The role of the injury in the headaches he described as "the precipitation of susceptibility". He was optimistic about ultimate recovery.

94. He saw the plaintiff again on 14 January 1997. He felt that striving to achieve at school had, from a pain management perspective, been "counterproductive". The plaintiff was examined again on 7 March 1998, this time for medico-legal purposes.

95. In so doing, Dr Champion was supplied with the reports of other practitioners. He did not agree with the label "fibromyalgia" used by Dr Veness. He preferred the term "secondary allodynia". He agreed that the mid-thoracic abnormalities observed on X-ray and MRI had no relevance to her chronic pain. The neuropathic symptoms in her lower limbs supported his view that there had been direct injury to the lumbosacral nerve roots. The cervical spine regional pain syndrome and headaches he considered to be significant. It indicated the presence of "extensive secondary allodynia" which was the reason, in his view, for the chronicity and severity of the disorder, "implying central sensitisation of nociception". His prognosis was more guarded than before. He said "...it is likely that there will be permanent pain related impairment of neck and back function". There was no curative treatment, though she might adapt and adjust to avoid frequent exacerbations of pain levels. A right occipital nerve block could well lessen the headache problem.

96. In his oral evidence, Dr Champion explained that "allodynia" referred to a heightened sensitivity to pain. It increases with repetition of pain. Nociception is the heightened perception or experience of pain. That effect was not, in his view, merely psychosomatic but organic. The indicators were the presence of peripheral nerve disorder and of secondary allodynia also referred to by him as hyperalgesia. There were psycho-social factors present but they were not "dominant".

97. He confirmed his view that improvement would occur, not because the underlying condition would resolve, but because the plaintiff would adapt her life-style to minimise provocation of severe pain. She would require continuing analgesic medication and review quarterly by a GP, annually by a consultant.

98. In cross-examination Dr Champion explained that the disc bulges between L3 and L5 were slight but indicative of injury to that area. He agreed that the accident had not caused the plaintiff's disposition to suffering migraines. Dr Champion accepted that the plaintiff's level of disability was not so great as to make her expectations of completion of university "unreasonable".

99. The defendant tendered a number of medical reports and called the three specialists referred to below.

100. Dr John Saboisky, a psychiatrist, saw the plaintiff on 11 February 1998. He reviewed most of the previous medical and psychological reports. Those omitted are probably not significant for his purposes. Apart from chronic pain, Dr Saboisky recognised her father's serious illness as a source of stress to the plaintiff. Nevertheless, he found no psychiatric abnormality. He could not find any psychiatric explanation for the chronicity of her pain. He, like Dr Champion, did not find Dr Veness's diagnosis of "fibromyalgia" very helpful or appropriate, though he does note that the "nodules" Dr Veness found to be supportive of that diagnosis are present. However, the plaintiff herself considers them to be due to Dr Lithgow's injections.

101. Nevertheless, within their own specialties, Dr Saboisky and Dr Veness are in agreement with the view that the chronicity of the plaintiff's pain is not explicable on the basis of psychiatric factors.

102. A number of reports from Dr James Nield were tendered. He saw the plaintiff once on 17 April 1998. He is a surgeon though his precise speciality is not identified. He commented in his longer report of 27 April 1998 that the history he took "appears embellished". He could not accept "significant loss of feeling or crush fractures and then being allowed home from hospital". In fact, there had not been a diagnosis of "crush factures". Whether the loss of feeling which resolved over six to seven hours should have led to the plaintiff's release from hospital is not commented on by any other practitioner but it is the fact, not merely the plaintiff's assertion, that it happened.

103. Dr Nield asserts that the referral of the plaintiff to "a wide range of practitioners" has resulted in a "vast functional overlay". If that is intended to be a diagnosis, I reject it. It is not supported by either of the psychiatrists or any of the psychologists whose speciality it would have been to detect such a phenomenon.

104. He found no physical explanation for her disabilities emanating from her musculo-skeletal system. That is supported by all other relevant specialists.

105. However, Dr Nield does not address the diagnosis offered by Dr Champion nor does his report support the view that the pain will disappear once the plaintiff is persuaded that it is not produced by any physical abnormality.

106. Dr David McNicol, an orthopaedic surgeon, examined the plaintiff on 1 September 1995. Not surprisingly, he found no spinal abnormality of any significance. He could not explain ongoing symptoms. He could only offer a suggestion that the cause was psychological. He was asked about Dr Champion's view that the cause of the plaintiff's ongoing pain, as both psychiatric causes and malingering were excluded, was neuropathic - nerves "switched on" to pain by an initial trauma. He agreed that he had heard of that view amongst rheumatologists but did not regard it as "mainstream". However, that left Dr McNicol with no explanation to offer for the plaintiff's ongoing pain.

107. It is my view that Dr Champion is correct. Indeed, no other rational explanation than that is open on the evidence. "Functional overlay" - psychosomatic pain - is ruled out by the psychiatrists and psychologists. No-one suggests the plaintiff is either feigning or even exaggerating her pain. Even Dr Nield is only prepared to hint at such a proposition, accepting "functional overlay" as his preferred explanation.

108. That leads me to conclude that there is no current prospect that the plaintiff's symptoms will disappear. I accept that there will be an adaptation over time. In other words, the plaintiff will, to some extent, learn to tolerate and manage her condition better. It will limit the range of employment open to her but not close off her currently contemplated career options.

109. For general damages I award $40,000. For the purpose of an award of interest, bearing in mind my findings concerning future diminution of suffering, I attribute 50% to the past. Interest from 11 August 1992 to date will be, in round figures, $2465.

110. In view of my findings as to causation I have no reason to disallow any of the out-of-pocket expenses claimed. I award $2464.45. Of that sum $555.55 was paid by the plaintiff or on her behalf by her parents. It will attract interest accordingly. Payments made by Medicare and HCF do not attract interest. $370 is reasonable.

111. For past medication, $1638 is claimed. That is an estimate of course but it seems calculated on a reasonable basis. I will award that sum. It also attracts interest. I award $1085 on account of interest.

112. As she was until recently a minor, it was necessary for the plaintiff to be taken to, and accompanied at, medical appointments. The claim is for $2589.52. It is calculated on current rates being a notional rather than actual expenditure, though some actual cost would be associated with motor vehicle travel. Having regard to the recent Federal court decision on interest on past expenses awards of this kind in Grincelis v House (1998) 156 ALR 443 an award of interest should be at the rate referred to in M.B.P. (S.A.) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657. I would award $2585 in round figures and interest of $320.

113. Related to, but separate from, the above was a claim for domestic assistance over the first year following the plaintiff's injury. That does not include attendances at medical appointments. The entitlement to compensation for services of this kind is recognised by the High Court, more recently, in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327.

114. The effect of that decision is to emphasise that mere re-arrangement of domestic services, even if accident-related, will not attract an award. However, if the injury prevents countervailing services, then, to that extent, the services provided to the plaintiff will be considered "additional". It relates to an accident-caused need for personal services. The plaintiff's evidence was to the effect that for the first few years she did less about the house. I conclude from that evidence that, due to pain, she withdrew from providing household services to her parents.

115. It is not clear to me whether any additional services were provided to the plaintiff. The services provided to the household, given her father's poor health, no doubt fell more on her mother, but those services would not have been specific to the plaintiff. I do not think this claim has been substantiated.

116. As far as the future is concerned, the plaintiff is seriously delayed in entering the work force. That delay is not less than one year; so much the defendant's counsel conceded. That has a "ripple effect" in terms of future increases in earnings foregone, though it would see itself out, probably, within five years. Further, the plaintiff is limited in her employment options. It is not appropriate to attempt any precise quantification. A substantial "buffer" is required. It is a discretionary allocation. I consider that $50000 is appropriate. The year's delay is $30000 of that, the general restriction $20000.

117. For future medical expenses $3643.64 is claimed. The basis for those claims seems reasonable to me. The period of eight years, as chosen, involves a reasonable discount for contingencies. I would allow $3640 in round figures.

118. The total of the above is as follows:

Damages $40000.00 plus Interest $2465

Out-of-pocket expenses $2464.45 plus Interest $370

Past medical expenses $1638.00 plus Interest $1085

Accompaniment to medicals $2585.00 plus Interest $320

Loss of earning capacity - future $50000.00

Future medical expenses $3640.00

Total: $104,567.45

119. Globally, that figure seems appropriate. I direct judgment for the plaintiff in the sum of $104, 567.45. I will hear the parties as to costs.

I certify that this and the twenty-one (21) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins

Associate:

Date: 14 October 1998

Counsel for the Plaintiff: D T Kennedy

Solicitors for the Plaintiff: Elrington Boardman Allport

Counsel for the Defendant: P J Deakin QC

Solicitors for the Defendant: Barker Gosling

Dates of hearing: 17 June, 7 & 8 September 1998

Date of judgment: 14 October 1998