Consideration
62 It is convenient at the outset to say something about the respondents' reasons complaint. The primary judge was not obliged to spell out every detail of his process of reasoning, but he was obliged to expose his reasons for resolving a point critical to the contest between the parties to enable them to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171, 182); North Sydney Council v Lygon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247 (at 270) per Mahoney JA, (at 280) per McHugh JA; Jones v Bradley [2003] NSWCA 81 (at [129]); Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. In my view the primary judge's reasons substantially complied with these obligations, although it would have been desirable for him to have explained with some greater precision why he rejected the second respondent's case that the precautions he took were reasonable in the circumstances. However as this Court is conducting a rehearing, and as it was not suggested this Court could not adequately review the evidence to resolve the cross-appeal, it is unnecessary to address this question further.
63 The respondents conceded at trial that they owed the appellant a duty of care. Neither counsel identified the nature or scope of that duty, although the respondents complained in their notice of cross appeal that the primary judge had erred in finding that they breached any duty of care they owed to the appellant and failed to give proper reasons for his findings in that respect.
64 Mr Kalfas accepted in the course of argument that the respondents owed the appellant a duty to exercise reasonable care and skill in the provision of professional advice and treatment, the standard of which was that of the ordinary skilled person exercising and professing to have the second respondent's skill as a physiotherapist: Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 (at 483). He contended that the scope of the duty was to conduct the assessment in a manner which avoided risk of injury to the appellant's left shoulder.
65 In my view Mr Kalfas' contention involves too narrow a formulation of the scope of the respondents' duty. The second respondent was conducting an assessment which required testing the appellant's physical capacity in all respects. He admitted that it was foreseeable that during the crawling exercise her left shoulder could be favoured and thus result in an increased loading of her right shoulder. Thus it is apparent this was a risk inherent in the process he required her to undertake. In my view the scope of his duty of care was to take reasonable steps to avoid that risk eventuating: Sydney Water Corporation v Turano [2009] HCA 42; (2009) 83 ALJR 1168. (at [48]).
66 Once the scope of the respondents' duty was identified, the question whether it had been breached had to be determined in accordance with s 5B of the Civil Liability Act 2002 (NSW), a provision remarkably absent from counsel's submissions at trial and in this Court as well as in the primary judgment. Section 5B provides:
"(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
67 The question of whether or not the respondents discharged their duty of care, although determined after the accident, had to be assessed at the time of their allegedly tortious conduct, by looking forward to identify what a reasonable person in their position, confronted with a foreseeable risk of injury, would have done in response: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 (at [16]) per Gleeson CJ; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [57]) per Gummow and Hayne JJ; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [60] - [61]) per Gummow J, Hayne J (at [124]).
68 There is no controversy that the respondents were alert to the risk that the appellant could be injured during the assessment. It was clearly not an insignificant risk. The appellant advised the second respondent of Professor Sonnabend's strictures that she should minimise manual handling. The second respondent recognised he should take some precautions. He said that in the light of Professor Sonnabend's advice and, as I understand the evidence, his own assessment of the appellant's condition, he adjusted the weights he required the appellant to use.
69 The primary judge's statement that he accepted the second respondent's evidence did not mean he could not accept Mr Middleton's opinion. The respondents' attack on Mr Middleton's opinion based on the number of hours he assumed the test had occupied cannot be sustained. As is apparent from the extracts from Mr Middleton's report I have set out, the period over which the physical testing proceeded was not critical to his opinion that the assessment was ill advised having regard to the appellant's recent shoulder surgery.
70 Indeed Mr Middleton's opinion as to the risk of conducting the assessment at that time corresponded with the risk the second respondent perceived prior to commencing to put the appellant through the assessment: the risk that she would favour her left arm at the expense of imposing more weight on the right arm.
71 The difference between the two lay in their opinion about what should be done. Mr Middleton said the assessment should not have been conducted at all. The second respondent said it could proceed adjusted as he saw fit to take into account the perceived risk. In my view that was not a reasonable response, especially having regard to Professor Sonnabend's advice that the appellant should minimise weight handling, having regard to the magnitude of the consequences if the perceived risk came home. In my view, merely adjusting the weights he required the appellant to use was an inadequate response. Leaving aside the cumulative effect of requiring the appellant to use weights over several hours on two successive days, adjusting the weights did not accommodate the crawling test which involved the appellant taking her entire body weight on all four limbs and transferring her weight from one arm (shoulder) to the other as she crawled. That is how I understand Mr Middleton to have interpreted Professor Sonnabend's advice when he said in his evidence in chief that crawling was "specifically against the surgeon's … protocol" and in contradistinction with "any surgeon's post operative protocol"
72 Further, it might be recalled that the primary judge noted that the second respondent's recollection of the assessment was "vague" and that he depended on his notes. There was an apparent disparity between the second respondent's handwritten notes of the assessment and his report in two respects.
73 First, the notes recorded "no weights specified by Dr Sonnabend". Assuming that can be taken literally as meaning the appellant should use no weights, it appears to have been translated in the second respondent's report into advice "to minimise manual handling tasks". Secondly, the notes recorded in respect of the crawling test, "C/o [complains of] discomfort in neck if trying to look forward", whereas the report stated, "[h]er neck and shoulder mobility restricted her during tasks requiring repetitive rotation or activities such as crawling". The second respondent was not taxed about these matters in cross-examination and I would not regard them as determinative of liability without him having been given the opportunity to explain them.
74 However on its face the second matter, in particular, suggests that the second respondent's handwritten notes did not fully record his observations during the assessment. It seems improbable he would have set out in the report a matter he did not observe during the assessment.
75 It is not to the point, in my view, that the second respondent said he did not see the appellant favouring her left shoulder. First, it will be recalled that in his cross-examination the following exchange took place:
"Q. That's exactly what you did, you did tests on her that necessarily involved her favouring the right arm, you know that don't you?
A. There was not evidence that she was favouring the right arm."
In my view it was implicit in that answer that the tests did necessarily involve the appellant favouring her arm, even if the second respondent did not observe that, or, having regard to his vague recollection of the assessment, did not recall it when he gave evidence.
76 In my view the primary judge was entitled to accept Mr Middleton's evidence that "you couldn't possibly crawl without favouring the shoulder that was not supposed to be loaded" (which he was permitted to repeat in re-examination) an opinion unsuccessfully, in my view, challenged in cross-examination.
77 Mr Middleton's opinion was reinforced by Dr Conrad's report. That report also emphasised the medical view that, independently of Mr Middleton's opinion, (and consistently as I understand the second respondent's handwritten note of Professor Sonnabend's advice) the assessment should not be undertaken "so soon after surgery". Dr Ellis's report also said the assessment was "inappropriately timed" having regard to the recency of the shoulder surgery. Professor Sonnabend's instructions to the appellant which she communicated to the second respondent, in my view, clearly indicated the appellant should not be required to undertake a physical assessment using weights, particularly one requiring her to support her own body weight. One would expect a reasonable physiotherapist in the second respondent's position, on the communication of Professor Sonnabend's instructions, to postpone the assessment.
78 Dr Schonstein's evidence, in my view, did not assist on the issue of breach from the respondents' point of view. She does not refer to the risk of injury the second respondent perceived to exist, makes the bald statement that he "correctly assessed the issue of weights used during weighted manual handling tasks (two kilograms or less), assumes the second respondent's report is complete, yet does not refer to the statement that the appellant's shoulder mobility restricted her during the crawling exercise and does not deal at all with the weight loading crawling to which the appellant's shoulders would have been exposed. Generally Dr Schonstein's report seems more concerned to deal with the Isernhagen FCE as a standard protocol without referring to the manner in which it might have been applied, if at all, in the circumstances the appellant's case presented.
79 In my view the primary judge did not err in concluding that the respondents were negligent in carrying out the assessment rather than postponing it.
80 The cross-appeal, insofar as it concerns liability, should be dismissed with costs.