Regan v ACT Schools Authority [2003] ACTSC 47 (13 June 2003)

Last Updated: 13 June 2003

EMILY REGAN v AUSTRALIAN CAPITAL TERRITORY

SCHOOLS AUTHORITY [2003] ACTSC 47 (13 June 2003)

LIABILITY - school authority - duty of care to students in outdoor education program - abseiling accident - no evidence of breach of duty.

DAMAGES - personal injury - assessment - pre-existing neck condition - no issue of principle.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

New South Wales v Lepore [2003] HCA 4

Commonwealth of Australia v Stokes (unreported, 15 November 1996, Gallop J, Supreme Court of the Australian Capital Territory)

No SC 840 of 2001

Judge: Connolly J

Supreme Court of the ACT

Date: 13 June 2003

IN THE SUPREME COURT OF THE )

) No SC 840 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: EMILY REGAN

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY

Defendant

ORDER

Judge: Connolly J

Date: 13 June 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendant with costs.

1. This is a claim for damages for personal injuries arising out of an incident, which occurred on 23 May 1994 when the plaintiff was a Year 10 student at Stromlo High School in the Australian Capital Territory. As part of her outdoor education class the plaintiff attended, with a group of other students and two supervising teachers, an abseiling training course at Baroomba Rocks, in the national park area south of Canberra. The plaintiff says that towards the end of the day as she was descending the rope gave way and she fell a distance, which resulted in her losing her footing and swinging back against the rock wall. She sustained injuries, including a crush fracture to a thoracic vertebrae, and claims that she has had ongoing difficulties with her back and neck since the accident.

2. The precise nature of the accident is a matter of some controversy. The matter is pleaded on the basis that "during the course of an abseil, the rope supporting the plaintiff gave way and she fell unsupported a distance of about 1 metre, losing her balance and swinging against the rock wall adjacent to her descent". It is common ground that the plaintiff, in the course of a descent, swung against the rock wall and sustained an injury, but the cause of that mechanism is a matter for determination at this hearing.

3. The plaintiff says that she had undertaken some training in abseiling and rock climbing in the school gym as part of her outdoor education unit, and had also undertaken some abseiling with a holiday camping organisation. She says that the students and two teachers went in the school mini bus, and they had to walk some distance from the parking area to the rock site. She said that the teachers were Mr DJ McCarthy, and another teacher whom she thought was called Mr Thompson.

4. She said that she could not remember how the gear had been set up, saying she presumed it was done by the teachers, but the students may have helped. She said that she did a first descent facing the top of the cliff without any problems. She said that the rope was attached at the top of the cliff to a metal pin or bolt embedded in the rocks. She said that the cliff area where they were descending had small trees around the top, and that the cliff face "initially started off fairly gently for the first couple of steps and then it had a bit of an overhang at the bottom".

5. She says she cannot remember how many descents she undertook, but she remembers that before the incident she asked the teacher if she could descend facing forwards, or down towards the ground, rather than backwards, or facing the top of the cliff. She says that Mr McCarthy agreed with this, and assisted her to put on her harness. She says that she began her descent, and that when she got to the start of the steep part she said (T 10):

... I walked over the gentle part and then you start to face the ground, and then I walked a couple of steps, and as I walked, the rope moved, and my feet came out from underneath me, which meant that then I was in a vertical position, instead of a horizontal one.

... my feet slipped and I crashed into the cliff face.

6. She says that she recalls that at the top of the cliff the rope had been lying over a boulder.

7. She says that after the incident "the belay person blocked (sic) off, as they're supposed to", and then one of the boys assisted her to a safe point on the cliff. She says she then "waited for the teacher to come back". Her evidence was that Mr McCarthy had left her when she started her abseil and had gone to see the other teacher (T 11). Her evidence was that she was being belayed by another student at the base of the cliff. Another student, Mr TW Eggleston, gave evidence that she was self-belaying.

8. If a teacher had left a Year 10 student unattended to descend a cliff either self-belaying or being belayed by another Year 10 student, this would, it seems to me, clearly establish a want of appropriate supervision which would establish liability.

9. Mr McCarthy gave evidence that he had qualified as a teacher in 1985, and had been engaged in teaching outdoor education activities since 1991, and obtained a Bachelor of Education in outdoor education in 1990. He identified a document, which became exhibit 1 before me, which was the Australian Capital Territory Department of Education Mandatory Procedures for Adventure Activities in Outdoor Education, which, he said, laid down the procedures to be followed for abseiling activities.

10. He said that the procedures in the manual were followed. He said that he and Mr WJ Thompson, the other teacher present, checked all the equipment and then set up the ropes at the cliff top, in an area that he said was suitable for this standard of student. He said that two abseiling areas were set up, one easier than the other. He said that the students were not permitted onto the rocks until the gear was set up. He said that this involved setting up two ropes for each descent, a main rope for the abseil, and a belay rope, which is the safety device. These are attached to different anchor points at the top of the cliff, which he said in this case were trees.

11. Mr McCarthy gave evidence that for every descent he acted as the belay person. He said that he was attached to a rope that runs to an anchorage point, and that he then runs the rope to the person descending, so that he could lock the person off at any time as needed. He said that he was anchored to a point so that, in the event of an incident, he could take the weight of the abseiler and lock them off without being at risk of being pulled over the edge himself. He said (T 72) that although there are other methods of belaying:

[for] beginner abseilers, it's much more advantageous to have more control, so that you're actually part of the system, rather than a separate part just feeding in a rope. And also I prefer to do that simply because I can watch and I can talk.

12. Mr McCarthy was definite in his evidence that he would not permit a student to descend self-belaying, or being belayed by another student. He maintained that he had been present and belayed the plaintiff. In cross-examination he agreed that a student at the bottom of the descent could have been holding the descent rope, which would be another form of belaying. He had given evidence that if a person gave a sharp pull on the descent rope from below it would slow the descent of an abseiler. It was not put to Mr McCarthy that he had left the plaintiff alone to make this descent.

13. Mr Thompson gave evidence that he saw Mr McCarthy belaying the plaintiff. He had been belaying the other group of students from a point some distance away from Mr McCarthy, and had himself descended after the last student in his group had gone down but his attention was drawn by some shouting following the incident. He said that he saw Mr McCarthy at the top belaying (T 102). Mr Thompson is a very experienced teacher of outdoor education, who has been involved in the field since about 1980, and estimated that he had probably taken some 8000 students abseiling. He was definite in his view that for Year 10 beginners, the teacher would always provide the belay. He said that students would only be allowed to belay other students when experienced Year 12 students might accompany a younger group on a very basic descent.

14. On all the evidence I am satisfied that the plaintiff was at the time belayed by Mr McCarthy. I am satisfied that she was honestly mistaken in her recollection that Mr McCarthy left after she began her descent. She was of course facing away from the cliff top, and would not have seen what Mr McCarthy was doing. She would have seen a student at the bottom holding the descent rope, and this would explain her evidence that she was being belayed from below. Mr McCarthy gave evidence that it was possible that a student was holding this rope as well as his belaying from above.

15. Mr Eggleston gave evidence that on the day the abseiling had involved self-belaying. This is inconsistent with the plaintiff's version of events, and it seems to me that Mr Eggleston is simply wrong about this. These events occurred some nine years ago. He said that he was not sure where Mr McCarthy was as he was standing at the top of the cliff watching the plaintiff descend and waiting for the next go. When it was put to him that Mr McCarthy was behind him performing the belaying function he said that he would not be able to say because he was watching the plaintiff (T 52-53).

16. The finding that Mr McCarthy was belaying appropriately was not seriously contested, and it was not put to him that he had not belayed the plaintiff. His evidence was that as she was descending she went sideways, and then swung into the rock face. He said that as this happened he locked off the belay so that she did not fall. He says that this was a very quick procedure, but acknowledged that she may have dropped a short distance in the period from her slip to the point where he locked her off on the belay rope. He estimated this at six inches. He said (T 81) it would not have been possible for her to have free fallen a metre because she was linked to him on the belay rope, and:

... if I locked off then for her to have fallen a metre I would have had to have been down on my knees or - at some particular point to allow for that distance. And I wasn't.

17. In cross-examination the plaintiff said that when the rope became slack she fell "not very far, maybe a metre at most", but she agreed that it could have been as little as five or six inches. She said "it could have been, because the movement was enough to have my feet come out" (T 42). I am satisfied that the rope could only have extended for the shorter distance for the reasons given by Mr McCarthy.

18. I am satisfied that the plaintiff had, prior to the day's excursion, received adequate and appropriate training at the school on the principles involved in both rock climbing and abseiling. The school had a rock wall constructed in the gym where students could practice, but this was the first excursion for this group of students. I am satisfied that Mr McCarthy and Mr Thompson provided adequate and appropriate supervision in relation to the safety measures needed for abseiling, and provided close supervision as the students made their descent. I find that both teachers belayed the students as they made their descent. Both teachers said that the equipment was examined before and after the climb, and I am satisfied that there was no equipment failure on this day.

19. The mechanism alleged to have caused the accident is that the descent rope, as it ran from the anchor point and over the cliff, went over a rock. The plaintiff said that there was a boulder at the top, and that as she descended there was some movement in the rope. She of course did not see what happened as she was facing away from the top.

20. Mr Eggleston gave evidence that he was standing at the top of the cliff waiting for his turn to come down. He says that he saw some movement of the rope on the rock. He said (T 48):

Basically what happened was, when Emily started abseiling down the rock, she started off well, got down - was down probably about four metres down and the rock that was - the rope that was used for Emily was over the top of a rock and then that rock - then it came down and went over the cliff. So what I can recall was that when Emily was taking a step with her left foot, the rock had actually - the rope had actually come off the side of the rock to the left-hand side which basically caused Emily to scuttle around the side of the rock. And she spun around and then hit into the cliff face.

21. He said that the rock was a bit rounded, and that as the rope moved "It slipped, it probably would have only been giving about a foot or two of extra rope onto what Emily had. ... But it was enough to unsteady her" (T 49). He had said that he was principally watching the plaintiff descend.

22. Although I have found that Mr Eggleston was clearly wrong in his recollection that students were self-belayed on this day, his recollection of seeing some movement in the rope in the manner described was not directly challenged in cross-examination, although his recollection that the slip created a foot or two of extra rope is inconsistent with my earlier finding that the rope could only have extended a short distance because otherwise Mr McCarthy would have been pulled down. The mechanism of a rope slipping or moving as it passes over what must be irregular rock shapes in an outdoor environment and so creating some degree of movement in the rope for the person descending is plausible, and there is one person, Mr Eggleston, who says that he observed this happening.

23. Mr McCarthy agreed in cross-examination that a rope moving to some extent as it went over rocks or irregular surfaces could cause a slackening of the rope and a fall of some six inches for the person descending (T 94). He gave evidence that what he observed, being the plaintiff swinging to the side and then hitting the rock face, could have been caused by the plaintiff's feet being too close together, not giving her a stable point and allowing her to pivot into the wall, or her foot slipping off the rock and again causing her to go sideways. He agreed that a movement in the rope could be a third possibility that could have caused her to move sideways. He agreed that the extent of any slackening would depend on a number of variables of which there was no evidence, such as the angle of the rope and the dimensions of the rock. Mr Lunney, for the plaintiff, had prepared a diagram showing the mechanism of the movement, which became exhibit C, and this, it seems to me, shows both the suggested mechanism of the movement, and the way the variables described above would impact on the fall.

24. Mr McCarthy was adamant, and he was not shaken in cross-examination on this point, that any movement must have been slight, because he was directly controlling the descent of the plaintiff by way of the belay rope, and he locked her off immediately when he noted the incident. His estimate of a maximum of some six inches was, it seems to me, conceded by the plaintiff in her cross-examination, and is consistent with Mr Eggleston's observations.

25. Mr Thompson gave evidence that when the students were taken to the site, and in preparation before the excursion, they were told that there would be differences in abseiling in an outdoor wilderness environment from descents from the rock wall in the school gym. It seems to me that this is necessarily so, and that while a controlled descent from an indoor rock wall would involve a rope running directly down from a fixed point, an outdoor descent would necessarily involve the rope running some distance from an anchor point, which the teachers both said was a tree, and then over the edge of the cliff face, which would be an uneven and rough area.

26. I am satisfied on the balance of probabilities that the accident occurred in the manner put forward in the plaintiff's case. That is, as she was descending, there was some sideways movement of the descent rope which caused the rope to move from a rock at the point that it went over the edge, creating a degree of momentary slackness. I find that this was only for a short drop, probably about the six inches described by Mr McCarthy and agreed by the plaintiff in cross-examination, but that this short drop was sufficient to cause her to lose her footing. I make no criticism of her recollection of a greater drop - no doubt for a person performing their first descent facing the ground any sudden drop of six inches would have felt like much more.

27. This finding of fact does not, however, necessarily lead to a finding that there has been negligence on the part of the defendant. The plaintiff acknowledged in cross-examination that the descent rope must necessarily be able to move sideways as a person descends, and that it would be dangerous if the rope was such that it could not move (T 42). When it was put to her that all that happened on this occasion was that the rope moved from the anchor point, she said that it was unusual to have that much movement in her experience (T 43). She agreed that she had been instructed that it was important when descending to keep her feet wide apart, particularly when descending face first (T 44). Such an instruction, it seems to me, would provide for the inevitable degree of minor movement in the descent rope as the person descends. This movement would generally be sideways, but could involve some drops when the rope moves across a surface that is necessarily, in an outdoor environment, irregular.

28. There was no evidence by way of any expert abseillers criticising the safety measures adopted by the teachers on the day of this incident. It was not put to the teachers that there was anything unsafe in a rope running over a surface that was irregular as the rope went from the anchor point over the cliff for the descent. It was not put to the teachers that there was anything they could do or should have done that would have prevented movement in the rope.

29. In order for a plaintiff to succeed it is of course necessary to establish negligence. It is well established that a school owes a duty of care, to a very high standard, to its students. The position was recently restated in New South Wales v Lepore [2003] HCA 4 where McHugh J said at [136] that:

In my opinion a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil.

30. The requirement is for reasonable care, and the standard can vary depending on the nature of the activity. Outdoor education activities such as abseiling must, and this was conceded by the defendant, involve a very high standard of care. But in order to succeed, a plaintiff must still establish negligence in failing to satisfy the standard of care. As Gallop J stated in Commonwealth of Australia v Stokes (unreported, 15 November 1996, Supreme Court of the Australian Capital Territory) at 11:

A school authority is not an insurer. Its duty in relation to students under its control and supervision is to take reasonable care for their safety, that is, it is one of affirmative action to take reasonable steps to protect them against risks of injury which reasonably ought to be foreseen.

31. I am satisfied that the school exercised appropriate care in the planning and preparation for the abseiling class. Mr McCarthy and Mr Thompson were experienced and well qualified outdoor education teachers. I am satisfied that the students were properly instructed and supervised. I am satisfied that the equipment was all in good working order. I am satisfied that a teacher acted as a belayer for all student descents, and in particular that Mr McCarthy belayed the plaintiff on this descent. I am satisfied that the requirements in the outdoor education manual were followed.

32. I find that as the plaintiff descended on her first face first descent she swung sideways and her legs fell away and she then swung back into the rock, striking her neck and back. There were three possible explanations for this mechanism, involving either a slipping of the feet, failure to have the feet properly apart, or a movement of the rope. Mr Eggleston says that he saw the rope move, and Mr McCarthy says this was possible. I find that the rope did move by sliding sideways in accordance with the movement from the student below, and that in doing so it moved off a rock on which it had rested, and that this produced a vertical movement, which on all the evidence I find was about six inches (or about 15 centimetres, although all the witnesses gave their evidence on this point in inches).

33. I am not satisfied on the evidence before me that this movement in the rope is anything other than the normal incidence of an abseil descent in an outdoor wilderness environment. The mechanism of an abseil, as illustrated in the diagram in exhibit C, must involve the descent rope running from an anchor point, and then coming into contact with the edge of the cliff as the rope runs over the edge in order to allow the climber to make his or her descent. The plaintiff agreed that the rope is not and cannot be fixed, and there must be a degree of movement. A cliff face in a national park is not a smooth artificial environment, and so as the rope moves from side to side at the point where it makes contact with the edge, any irregularity in the edge of the cliff face at that point will translate into some movement, up or down, as perceived by the person making the descent.

34. There was no expert evidence as to what could or should be done to prevent this. Mr Thompson said that students were told that abseiling in an outdoor environment was different from abseiling on an artificial rock face in a school gym. The plaintiff said that she knew and expected movement in the descent rope, although this movement was greater than in her experience. The teacher on duty was watching the descent, and belaying the plaintiff, so that when she did lose her footing, he was able to immediately stop her - otherwise, she could (unless able to control her own descent by a self-belaying technique) have sustained very severe injuries by falling to the base of the descent. It was not put to Mr McCarthy that he should have done something to prevent any movement in the rope. On the evidence before me I am not satisfied that there was anything the teachers should have done that they did not do which would have prevented this accident. It seems to me that to find liability would be tantamount to concluding that an accident occurred, therefore it must have been the fault of the school. The school would be the insurer, which is clearly not the law.

35. On the evidence before me I am not satisfied that the defendant, through the actions of the teachers on duty, Mr McCarthy and Mr Thompson, breached a duty of care to the plaintiff. Accordingly, there should be judgment for the defendant.

Damages

36. If I am wrong on this point, it is appropriate for me to proceed to an assessment of damages.

37. The plaintiff's case is that in the accident she sustained a frank crush fracture to a thoracic vertebrae, and that she has also experienced ongoing neck and back pain. It is her case that there was no prior neck difficulty.

38. There seems to be no dispute that x-rays of the plaintiff, taken shortly after this incident, revealed a minor crush fracture at T9, which is clearly attributable to the accident, and also narrowing of the disc space at C5-6.

39. In a medical report prepared for the plaintiff's solicitors on 11 September 1996, Dr B Ashman, an orthopaedic surgeon, reported :

She is a 16 year old girl who stated that she injured her upper thoracic spine in a fall while abseiling with her school in May 1994. She subsequently developed interscapular pain and also aggravated her pre-existing condition of neck pain and headaches. This neck problem related to a motor vehicle accident that she was involved in when she was 8 years old and a separate fall directly on her head when she was approximately 12 years old. As far as her injury in 1994 was concerned she had been treated with physical therapy and chiropractic manipulation and although she had taken occasional days off school and occasional Panadol for her pain it had not significantly impaired her physical abilities. She was still playing her normal range of sports.

40. Dr Ashman must have obtained this history from the plaintiff or a parent who may have attended with her. He said:

My initial diagnosis was of a thoracic vertebral crush fracture as a result of the abseiling accident and an aggravation of a pre- existing cervical disc injury. I reassured her and her parents at that time that she did not require any specific treatment for her thoracic crush fracture but I gave them some general advice regarding management of cervical disc problems.

41. Dr Ashman stated in his report that she again presented on 5 July 1995 following neck pain after she had "cracked" her neck. He referred her for an MRI scan, which he said revealed a partial bony fusion of the posterior half of the C5-6 disc space. He said:

My interpretation was that this partial fusion had arisen as a result of the damage to the disc caused either by the original motor vehicle accident eight years previously or the fall on her head approximately three years ago. In my opinion this appearance could not have arisen as a result of the abseiling accident in 1994.

42. Dr Ashman concluded his report by stating:

My prognosis is that she will have no long term disabilities as a result of her thoracic crush fracture but she may continue to have recurrent episodes of neck pain and stiffness as a result of her original neck condition. In my opinion the abseiling accident in 1994 has had only a temporary aggravating effect on her neck condition and the duration of this temporary aggravation probably lasted only 12 months.

43. Counsel for the defendant submitted that this report from the plaintiff's treating orthopaedic surgeon, should satisfy me that the abseiling accident caused only a temporary aggravation to a longstanding neck problem. Although the plaintiff and her mother denied that there were any longstanding problems from the childhood motor vehicle accident, and now put all of her problems down to the abseiling accident, this is not the history obtained in 1995 by Dr Ashman.

44. Hospital records tendered in the plaintiff's case show that she attended Woden Valley Hospital on 1 June 1995 complaining of neck pain following cracking of her neck. The emergency record takes a history of:

Pain R side of neck following self "cracking" neck this am. Has degenerative changes in c spine ... P/H of MVA 6 years ago? Leading to C5/6 degeneration. X-ray evidence of marked C5/6 disc space loss. No instability demonstrated (July 1994). Also P/H of abseiling accident May `94 leading to complaint of back pain. Several months later slight right lateral wedging of T9 noted.

45. The nursing admission sheet of the same date records a known condition of "neck and back problems C 5 C6 p/h of MVA 8 years ago". The nursing history records "Pt has problems (with) C5 and C6 and usually cracks her neck herself, this time she hurt the right side of neck". This document of June 1995 records a history, which must have come from the plaintiff or a parent, of longstanding neck problems, and a history which related the abseiling accident to back problems, and the T9 fracture. The neck complaints are related to C5 and C6, which is identified as a longstanding problem.

46. Since 1996 the plaintiff has been receiving treatment for her neck from Dr R Reid, a sports medicine physician. His report of March 1999 shows that she was having problems with neck pain. He attributed her disabilities to the abseiling accident, but said:

She has a permanent problem of a wedge fracture at T9, and also some degeneration at C5/C6 in her neck, but the second of these is not (as far as I am aware) a result of this particular injury.

47. Given that her recorded problems are in the region of the pre-existing injury, which he says is not attributable to the abseiling incident, I do not accept his view that her problems are attributable to the 1994 accident, and prefer the views of Dr Ashman.

48. There is also a report from Dr OB White, a neurologist. He first saw the plaintiff in 2001, and has a history only of the abseiling accident. His report, it seems to me, attributes the C5/6 condition to the accident, which is not a sound history.

49. The defendant tendered a letter dated 11 April 1995 from Dr Ashman to the plaintiff's general practitioner, Dr Howe, which has a history that the plaintiff has complained of back pain since the abseiling accident, but has had headaches "ever since" the motor vehicle accident. This contemporary note is inconsistent with the evidence of the plaintiff and her mother, but I observe that they are both giving evidence some nine years after the event, and in the context where they have become firmly of the view that it is the abseiling accident that has been the basis of the plaintiff's problems. Where events are so distant, the consistent contemporary notes and histories seem to me to provide the better evidence of the plaintiff's medical history. Dr A Cairns, an orthopaedic surgeon, who provided an expert report for the defendant, essentially takes the same position as Dr Ashman, in that he says that the plaintiff sustained a crush fracture at T9 which has not caused ongoing problems, but aggravated a longstanding problem at C5/6, which has been the source of her ongoing complaints, but was previously symptomatic.

50. On all the evidence, I prefer the views of Dr Ashman and Dr Cairns. This results in a finding that the plaintiff sustained an injury of sufficient severity in the impact with the cliff to cause a crush fracture to her thoracic spine at T9. I accept also that this caused a significant degree of soft tissue injury resulting in the generalised back pain she complained of at the time. I accept that it aggravated a previously symptomatic degenerative condition at C5/C6, and that neck pain and headaches continued. I find that the headaches had been a longstanding problem. I find that the neck condition became materially further aggravated in June 1995 as she attempted to crack her neck, but I do not attribute this to the abseiling incident.

51. Mr J Parsons, a clinical psychologist, provided a report in the plaintiff's case in which he referred to the psychological sequelae of ongoing neck pain. He concluded that the plaintiff at 2000 was still showing signs of post-traumatic stress disorder. While the ongoing pain symptoms he recorded were not, on my findings, accident-related, I accept that the incident would have been very distressing, and a degree of post-traumatic stress disorder would have been present for a time.

52. The plaintiff and her mother gave evidence that her neck pain was an ongoing problem that caused her considerable absences from school during Years 11 and 12. It is the plaintiff's case that these accident-related absences caused her to do poorly in her tertiary entry level, so that she was not able to take up her longstanding ambition to be a primary school teacher. She has subsequently obtained admission as a mature age student to the Australian Catholic University and is now in her final year of studies towards qualifying as a primary school teacher, and has distinguished herself by obtaining results that have resulted in her being awarded the scholarships that that University awards to the top ten percent of students at the end of their second year.

53. She agreed in cross-examination that there were other factors in Year 12 leading to absences, being two hospital admissions in the early part of the year, and the development of glandular fever which resulted in her missing the entire last semester. These non-accident related losses of time must, it seems to me, have impacted upon her studies, but the more important issue here is that I am not satisfied that by Year 12 her neck pain was accident-related. Dr Ashman, her then treating specialist, has expressed the view that the aggravation caused by the accident to her underlying problem at C5/6 was of 12 months duration, and I have so found.

54. In relation to general damages, I would assess the plaintiff on the basis that she sustained a frank injury to her thoracic spine by way of a crush fracture when she spun into the cliff face, and that the impact also aggravated her longstanding degenerative changes in her cervical spine at C5 and C6. I accept that she was in considerable pain for a period following the accident. I accept the view of Dr Ashman that the affects of the accident were limited in time, and that the thoracic crush fracture is not productive of ongoing symptoms, and the aggravation to the cervical spine problems lasted about 12 months. The escalation of her neck problems which resulted in the hospital admission and specialist treatment in June 1995 I take to be related to the underlying problem, and was caused by her neck exercises. I do not attribute this to the accident.

55. In these circumstances, I would have awarded general damages in the sum of $25,000.

56. There was a claim for damages pursuant to the principle of Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. I accept that after the accident the plaintiff's mother provided considerable assistance to the plaintiff, and that on her return to school she frequently attended the school to pick her up when her neck and back pain became severe. This seems to have continued over many years, but given my findings as to the impact of the accident, I would only consider this to be accident-related for the period of 12 months after the accident. For the Griffiths v Kerkemeyer claim I would award the sum of $7000 inclusive of interest.

57. The plaintiff's claim for economic loss is based on the impact her accident-related injuries are said to have had on her relatively poor results at the end of Year 12, leading to a delay in obtaining entry to teacher training. While it is conceded that the plaintiff is now doing very well in her studies, and will take up the profession of teaching successfully, it is also claimed that her ongoing back and neck problems will limit her undertaking the heavy activities that are necessarily a part of classroom teaching at the primary level. The plaintiff says that in her practical teaching placements she has learned that it is easier to work with upper primary children because it requires less stooping, and these children can assist with tasks such as rearranging classroom furniture.

58. In relation to the past loss claim, on the medical evidence I am not satisfied that the plaintiff's neck and back problems by Years 11 and 12 were attributable to the accident. I must also take into account that there were other significant absences from school in Year 12 that were related to other causes. I am not satisfied that the plaintiff would have established a claim for economic loss, past or future, in relation to a closed period of accident-related injury that occurred during high school.

59. Past out-of-pocket expenses were agreed arithmetically in the sum of $10,078.65, and I would have awarded this sum. I would make no allowance for future out-of-pocket expenses. This would amount to a total award of damages made up as follows:

General damages $25,000.00

Past out-of-pocket expenses $10,078.65

Griffiths v Kerkemeyer $7,000.00

Total: $42,078.65

60. This is the sum that I would have awarded had I found the defendant liable for the plaintiff's injuries, but as I have not so found, there will be judgment for the defendant, with costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 13 June 2003

Counsel for the plaintiff: Mr G Lunney

Solicitor for the plaintiff: Higgins Solicitors

Counsel for the defendant: Mr S Pilkinton

Solicitor for the defendant: ACT Government Solicitor

Dates of hearing: 29 and 30 April 2003

Date of judgment: 13 June 2003