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[2020] ACTCA 2
Court of Appeal (ACT)
2020-02-19
Burns, J, Loukas-Karlsson J and Crowe AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised report: (2020) 15 ACTLR 233
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Cornwall v Jenkins as Trustee for the iSpin Family Trust
Citation: [2020] ACTCA 2
Hearing Date: 15 November 2019
Decision Date: 19 February 2020
Before: Burns J, Loukas-Karlsson J and Crowe AJ
Decision: See [67]
Catchwords: APPEAL – NEGLIGENCE – Breach of duty – appellant was injured while participating in an “aerial sling” exercise class – whether the primary judge erred in finding that the respondent had not breached her duty of care to the appellant by failing to require her to use a crash mat – whether, in the alternative, any breach of duty had not caused the appellant’s injuries – whether the appellant is guilty of contributory negligence
Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), ss 40-46, 102 Civil Liability Act 2002 (NSW), s 5B Supreme Court Act 1933 (ACT), s 37E
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bov Najem [2009] HCA 48; 239 CLR 420 Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301 Cornwall v Jenkins as trustee for the iSpin Family Trust [2019] ACTSC 34 Fox v Percy [2003] HCA 22; 214 CLR 118 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hamilton v Nuroof (WA) Ptd Ltd (1956) 96 CLR 18 Jandson Pty Ltd v Welsh [2008] NSWCA 317 Meandarra Ariel Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Shaw v Thomas [2010] NSWCA 169 Stephen v Transport Accident Commission [2019] VSCA 234 The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Warren v Coombes (1979) 142 CLR 531 Waverley Council v Ferreira [2005] NSWCA 418 Wood v State of New South Wales [2019] NSWCA 313 Wyong Shire Council v Shirt (1980)146 CLR 40 Parties: Carrie Cornwall (Appellant) Sophie Jenkins as Trustee for the iSpin Family Trust Trading as iSpin (Respondent) Representation: Counsel C Erskine SC with D Richards (Appellant) A Cheshire SC with E Esber (Respondent)
Solicitors Maliganis Edwards Johnson (Appellant) Colin Biggers & Paisley Lawyers (Respondent)
File Number: ACTCA 12 of 2019
Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 21 February 2019 Case Title: Cornwall v Jenkins as trustee for the iSpin Family Trust Citation: [2019] ACTSC 34
THE COURT:
Introduction
On 11 February 2014, the appellant was injured while participating in an “aerial sling” exercise class. As the primary judge observed, this is a fitness class where participants take part in exercises using a fabric sling which is attached to the ceiling. While practicing a particular manoeuvre, the appellant fell from the sling and broke both wrists. At that time, the appellant was using a relatively thin yoga mat as fall protection. The studio had a supply of thicker mats, referred to as “crash mats”, but did not require the participants to use them. The appellant brought a proceeding alleging that the respondent, who ran the fitness class and occupied the premises, was negligent. The respondent denied negligence and asserted that, if negligence was proven, the appellant was contributorily negligent.
After a hearing occupying seven days, the primary judge ordered that judgment be entered for the respondent: Cornwall v Jenkins as trustee for the iSpin Family Trust [2019] ACTSC 34. His Honour did so on the basis that the evidence did not reveal any breach of duty on the part of the respondent. The appellant has appealed from that judgment. The appellant pleaded multiple grounds of appeal, but in essence her submission was that the primary judge erred in finding that the respondent had not breached her duty of care to the appellant by failing to require her to use a crash mat, and, in the alternative that any breach of duty had not caused the appellant’s injuries. In addition, the appellant contended that the primary judge made an error in assuming past economic loss. This last error has been conceded by the respondent.
The respondent filed a notice of cross-appeal seeking orders that the appellant’s damages be reduced by reason of contributory negligence in the event that the appellant succeeded on her appeal. The respondent also filed a notice of contention asserting that the primary judge:
(1) should have found that the risk of harm was not reasonably foreseeable and not ‘not insignificant’ within the meaning of s 43 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act);
(2) should have found that the risk of harm was the risk of the appellant falling whilst performing the hip lock move with the assistance of a spotter; and
(3) should have found (if he did not so find) that the presence of crash mats would not have prevented the injury within the meaning of s 45 of the Wrongs Act.
The relevant provisions of the Wrongs Act
Part 4.1 Preliminary—negligence 40 Definitions—ch 4 In this chapter: harm means harm of any kind, and includes— (a) personal injury; and (b) damage to property; and (c) economic loss. negligence means failure to exercise reasonable care and skill. 41 Application—ch 4 (1) This chapter applies to all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise. (2) However, this chapter does not apply to a claim under the Workers Compensation Act 1951. Part 4.2 Duty of care 42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 43 Precautions against risk—general principles (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 deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions 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 creating the risk of harm. 44 Precautions against risk—other principles In a proceeding in relation to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk. Part 4.3 Causation 45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation'); (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability). (2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them— (a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party. 46 Burden of Proof In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. The primary judge’s reasons
The findings of basal fact made by the primary judge were not the subject of dispute. The appellant’s submission is that on those findings, and based on the expert evidence accepted by the primary judge, his Honour should have entered judgment for the appellant.
The appellant was 23 years old at the time of injury. The classes which she attended were in the iSpin fitness studio. She signed up initially for a beginner’s level pole dancing class. The iSpin studios had three rooms: a main room in which classes were conducted, a storage room and a bathroom. In the main room, there were a number of poles which could be used for pole dancing. Between the poles there were fabric slings suspended from the ceiling and on which exercise manoeuvres could be performed. The appellant had participated in sling classes approximately once a week for about a year.
The respondent supplied purple yoga mats for the use of class participants. Each such mat had a hole cut in the centre and a slit from the hole to one of the long edges of the mat, enabling the mat to be fitted around the base of one of the poles. The yoga mats were used for doing warm-up exercises and stretches. After the warm-up, the class was introduced to a particular manoeuvre or manoeuvres on the sling. After being shown the manoeuvre, the class would practice it using the slings in the main room. The primary judge found that the manner in which a new manoeuvre using the sling was taught involved the teacher of the class demonstrating it on a couple of occasions, giving tips and instructions as to how it should be done.
On 11 February 2014, the appellant attended the premises after work, having picked up a friend, Anna Loeschnauer, on the way. At the commencement of the class, the instructor, Carla Weijers, told the students to each get one of the yoga mats and place it under the anchor point of the sling the student would use.
Before the primary judge, there was a dispute about the description of the manoeuvre being taught in the class when the appellant was injured. The primary judge accepted the evidence of Ms Weijers that on 11 February 2014, she was teaching the class a “hip lock” manoeuvre. The primary judge described Ms Weijers’ evidence as follows, at [32]:
Ms Weijers described the process that was undertaken in the class by reference to the program for the term. When she got up to the hip lock move in the program that would be demonstrated to the class and be done by the students at ground level. I will refer to this as level I. Ms Weijers described that level I involved looping the sling under one leg, holding it between the legs with one hand and then holding further up the sling with the other hand. At this point, the students would lift slightly off the ground to test whether they were able to hold their body weight using the sling. Students would then stop and Ms Weijers would demonstrate the level II version of the move which involved tilting the body while holding the end of the sling between their legs with one hand. Then the students stopped again and she went through the advanced level. Her description of the instructions given to students involved a reference to the use of a spotter for this move and demonstrating what a spotter was required to do. She described the move as more of a conditioning move of hip movement rather than being “one of the big showy moves”. She said that she would then go around and spot students or assist them. If there were other students who had done the move previously, then she would direct them to be spotters. Her recollection was that the plaintiff had actually done the move in a previous term.
The primary judge found that in performing the hip lock manoeuvre the student was not supposed to release their grip on the sling; indeed, the manoeuvre required them to maintain a grip on the sling with their hands. The appellant had testified that she was performing what she referred to as a “pancake” manoeuvre, involving climbing to the top of the sling and inverting her body. The performance of the manoeuvre, she said, was similar to the hip lock manoeuvre, but involved releasing one’s hand grip on the sling. The primary judge was satisfied, however, that the manoeuvre being taught in that lesson was the hip lock.
In reaching the conclusion that the manoeuvre being taught was the hip lock, the primary judge accorded significance to an email Ms Weijers sent to the respondent shortly after the appellant was injured:
This evening in the 6.30 sling class Carrie Cornwell [sic] injured her left wrist.
We were doing the ‘hip lock’ move and she was doing the advanced version where you hold onto the karabiners with your hands and scissor your legs to get into the move. They were told that if they were trying this one to make sure that they had a spotter to make sure their legs went back into the sling afterwards.
I was spotting Delphine on the left hand side – Carrie was over on the right – she didn’t have a spotter. Her foot didn’t go back into the sling properly and she got caught and fell to the floor.
I went and got her ice straight away and she sat down for the rest of the class. I examined the wrist and you could see straight away that it didn’t look like the other one.
The impression created by this email is that Ms Weijers saw the appellant fall; in fact, she did not. She testified that her back was turned to where the appellant was performing the manoeuvre at the time the appellant fell. The primary judge accepted that the content of the email was based on impressions gained by Ms Weijers when she turned around after the fall.
Although the primary judge does not directly say so, his Honour’s findings plainly accept that the appellant was attempting to perform some type of manoeuvre involving hanging from the top of the sling.
The primary judge accepted the evidence of Ms Weijers that the appellant, along with the other participants, was instructed to use a spotter. It was accepted by the respondent in the present appeal that the role of the spotter was restricted to ensuring that the participant’s foot went back into the sling properly after completing the manoeuvre.
With regard to the mechanics of the appellant’s fall, the primary judge said, at [73]-[74]:
No witness except the plaintiff saw what was involved in the accident. In her evidence the plaintiff was uncertain as to how the accident occurred. As pointed out above, even though she had no actual recollection, her belief was that she “had gotten into the move and was attempting to get back up and couldn’t”. The injuries sustained to both of the plaintiff’s wrists are consistent with her having fallen forward towards the floor.
The report of Mr Armanasco within Exhibit 20 identifies three possible scenarios by which this might have occurred. First, that the plaintiff fell when performing the move that she described with her hands off, the hip lock becoming ineffective for some unknown reason. Second, that she was performing a hip lock in accordance with Ms Weijers’ instructions but lost grip of the carabiners and then fell headfirst to the floor surface with her hands extended. Third, consistently with the impression obtained by Ms Weijers immediately after the accident, that the plaintiff had fallen after failing to get her foot back into the sling properly. One way in which that might have happened is if the plaintiff had her foot somehow in the sling but that it slipped behind her centre of gravity so as to permit her to fall forward. On the evidence available it is not possible to make a finding, on the balance of probabilities, as to the mechanics, other than to say that the plaintiff fell forward and struck her wrists with some force as they broke her fall.
The finding by the primary judge that the appellant “fell forward” requires some explanation. Earlier in his reasons, at [3], the primary judge noted that “[i]t can be inferred that [the appellant] fell forward rather than backward because she suffered two broken wrists and no injury to the back side of her body”. The finding that the appellant “fell forward” is therefore nothing more than a finding that the appellant fell with the front of her body towards the ground (prone), rather than the back of her body (supine).
With regard to the use of mats to provide fall protection, the primary judge said, at [84]:
The defendant had available 50mm crash mats, which were kept within the room where the classes were conducted as well as in an adjacent storeroom. Students could choose to use the crash mats or the yoga mats. Students generally chose to use yoga mats because many of the moves undertaken in the sling class were floor based moves and it was easier to perform those moves on a thin, firm yoga mat rather than on a thicker squashier crash mat. The instructors did not insist upon the use of crash mats, nor did they advise students that they should use crash mats for any particular move. The plaintiff was in fact using a yoga mat when the incident occurred. There is no evidence as to where she fell in relation to that yoga mat.
(a) first, there was no evidence of practices adopted in any equivalent sling classes, making it impossible to make an assessment of the reasonableness of the respondent’s conduct by reference to competent and experienced practitioners in the field;
(b) secondly, there was no evidence of any accepted standards or guidelines relating to the use of mats in sling or pole exercise classes, making it impossible to make an assessment of the reasonableness of the respondent’s conduct by reference to such standards or guidelines; and
(c) thirdly, the evidence of the nature of the sling manoeuvres taught in the sling classes was insufficient to provide an overall picture of the types of manoeuvres taught and, hence, insufficient to provide a reliable picture of the level of hazard involved in those manoeuvres.
I am not able to conclude that the failure to provide crash mats rather than yoga mats when students were performing the level III hip lock move amounted to a failure to take precautions against a risk that a reasonable person would have taken. In short, it has not been proven that, in the context of the exercise class, the moves taught and undertaken generally or the specific move being undertaken by the plaintiff on the day involved such a risk of injury to the plaintiff that a reasonable person in the defendant’s position would have insisted upon the use of a crash mat. Clearly, there was a foreseeable risk of harm arising during the class that as a result of an accident a person’s body may come into uncontrolled contact with the floor. The likelihood of that accident occurring is informed by the fact that both the defendant and Ms Weijers gave evidence that they had not witnessed a fall from the sling or the suffering of any injury during their years of involvement with the business as students or instructors. Crash mats were made available but their use was neither actively encouraged nor mandated. The instructions given were, in the light of the move to be performed, such as to reduce the risk of any harm to the plaintiff who had a significant level of experience in performing sling moves generally. Clearly, the use of thinner yoga mats meant that there was less protection of students in the event of a fall. However, examining the matter prospectively, the evidence does not permit a conclusion that the insistence upon the use of one or more crash mats was a measure that a reasonable person in the position of the defendant would have taken.
I have reached that conclusion having regard to the factors in s 43(2) of the Civil Law (Wrongs) Act. The probability that the harm would happen (s 43(2)(a)) if a crash mat was not used was low. That is because the evidence was that no fall had previously occurred and no injury such as that suffered by the plaintiff had previously occurred at the premises while the defendant or Ms Weijers had been involved there. If harm did occur, it might be serious but was more likely not to be (s 43(2)(b)). The burden of taking precautions to avoid the risk of harm (s 43(2)(c)) would have been modest, involving moving crash mats into position for the purposes of that move (and perhaps other similar moves). The burden would have been somewhat greater if multiple mats were required to be used and this might have involved the dedication of a particular part of the premises for that purpose. The social utility of the activity creating the risk of harm (s 43(2)(d)) is not a significant consideration in the present case.
If reasonable care required that a crash mat was placed under the relevant sling, factual causation would not have been established. That is because in the absence of findings about the manner in which the plaintiff fell, it is not possible to say that she fell within the area that would have been protected by the crash mat. Because it is not possible to determine the mechanics of the accident, other than to say that the plaintiff fell forward, it is not possible to say that it is more likely than not that the plaintiff’s wrists would have struck the ground within the area of full protection provided by a crash mat.
In any event, the evidence was not sufficient to establish that the use of a single layer of mat would have avoided the injuries that plaintiff suffered. It is certainly possible that the increased give under the mats would have cushioned the plaintiff’s fall. However, there was no expert medical evidence to indicate that the wrist injuries would, on the balance of probabilities, have been avoided. Mr Armanasco commented on the difficulty of reaching a conclusion about the effectiveness of a crash mat: see [56] above. I do not consider it possible to conclude myself that the injury would have been avoided in the absence of medical evidence, in the absence of a clear understanding of the mechanics of the accident, and in the absence of anything but photographs of the crash mats.
If there were two or three layers of mats then it is more likely that the plaintiff would not have suffered any serious injury so long as she fell onto those mats. Given the question strictly does not arise, I will not attempt to make any finding as to whether or not that likelihood meets the threshold of being more likely than not.
I do not accept the defendant’s submission. The level III hip lock move involved performing a manoeuvre above the ground while the student was holding herself with her arms. It was reasonably foreseeable that if a student fell the student would suffer an injury. A student might fall because the student was not following the instructions given or because, while attempting to follow all relevant instructions, failed to remain securely supported on the sling either before, during or after attempting the actual hip lock. While, having regard to the evidence of Ms Weijers and the defendant, the risk of an injury was empirically low, it was clearly foreseeable. For the same reasons, for the purposes of s 43(1)(b), while the risk of injury was low, it was not insignificant.
The nature of the present appeal
The present appeal is one governed by s 37E of the Supreme Court Act 1933 (ACT). It is an appeal in the nature of a rehearing, albeit that error must still be shown: The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142.
In such an appeal, the appellate court is obliged to give the judgment which in its opinion ought to have been given in the first instance, but in doing so it must recognise the limitations that exist where an appellate court proceeds wholly or substantially on the record: Fox v Percy [2003] HCA 22; 214 CLR 118. Where the facts have been determined by the trial judge, an appellate court will generally be in as good a position as the trial judge to decide on the proper inferences to be drawn from the facts: Warren v Coombes (1979) 142 CLR 531 at 551. As the appellant does not seek to persuade us that findings of fact made by the primary judge should be overturned, based on his findings of the credit of various witnesses, it is not necessary for this Court to find that inferences drawn by the primary judge were contrary to compelling inferences, shown to be wrong by incontrovertible facts or uncontested testimony, or were glaringly improbable: Wood v State of New South Wales [2019] NSWCA 313 at [46]; Stephen v Transport Accident Commission [2019] VSCA 234 at [53].
Relevant principles of liability
First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyons Shire Council v Shirt.
(citations omitted)
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk, the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
There are clear parallels between the principles enunciated by Gummow J in Dederer and the relevant consideration regarding precautions against risk found in s 43 of the Wrongs Act. Section 43(1)(c) requires a court to consider what precautions a reasonable person in the position of the alleged tortfeasor would have taken, which is broadly the equivalent of the second principle stated by Gummow J. Section 43(1)(a) requires a court to consider whether a risk of harm is reasonably foreseeable, which is a requirement that the risk be reasonably foreseeable prospectively. This is the equivalent of the fourth principle stated by Gummow J. The fifth principle stated by Gummow J requires consideration of a range of matters, including the magnitude of the risk, the degree of probability of its occurrence, the cost, difficulty and inconvenience of taking alleviating action and any other responsibilities the alleged tortfeasor may have had. These considerations bear obvious similarities to the matters set out in s 43(2) of the Wrongs Act.
This comparison is significant because it demonstrates the continuing relevance of pre-Wrongs Act principles and authority to the determination of liability in claims for damages in negligence to which the Wrongs Act applies. In assessing such a claim, one applies the common law principles of negligence as necessarily modified by the Wrongs Act. In Waverley Council v Ferreira [2005] NSWCA 418, Ipp JA, with whom Spigelman CJ and Tobias JA agreed, stated at [45] that the matters found in s 5B(2) of the Civil Liability Act 2002 (NSW) are in substance a reiteration of the remarks of Mason J in Shirt, set out above. Ipp JA went on to say, at [47], that s 5B(2) had been enacted “to avoid conflation of the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it”.
Section 43(1)(b) of the Wrongs Act provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was not insignificant. This requires the risk to be assessed prospectively. The double negative “not insignificant” imposes a more demanding standard than that imposed by the common law, but not greatly so: Shaw v Thomas [2010] NSWCA 169 at [44], per Macfarlan JA (with whom Beazley and Tobias JJA agreed). Similarly, in Meandarra Ariel Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319, this led Fraser JA (with whom White JA and Mullins J agreed) to conclude, at [26]:
The respondent referred to Chesterman J’s statement in Pollard v Trude that the replacement in s 9(1)(b) of “not insignificant” for the common law formulation of “not far fetched or fanciful” added little in clarity. Nevertheless, the provision was designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true…
(citations omitted).
The issue of the burden of taking precautions to avoid the risk of harm (s 43(2)(c), the Wrongs Act) does not appear to have been one that was the subject of focus in the proceeding before the primary judge. It is, nevertheless, a relevant consideration. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540, the respondent, Mr Ryan, contracted hepatitis A from consuming oysters contaminated with human faeces. The oysters were grown in Wallis Lake in New South Wales. Evidence established that the hepatitis A virus is capable of surviving in food and in fresh or salt water for prolonged periods, even years. It was known that heavy rain brought with it an increased risk of viral contamination of oysters, so that growers generally desisted from harvesting oysters during or after heavy rainfall. In the period 22-25 November 1996, there was heavy rainfall in the area of Wallis Lake. The appellant group of companies, who farmed oysters in Wallis Lake, ceased harvesting at 9 am on 23 November 1996 and did not recommence until 27 November 1996. Samples of oysters between 26 November 1996 and 9 January 1997 tested negative for E-coli bacteria, suggesting, but not establishing, that the samples were free from viral contamination. In accordance with its usual practice, the appellant continued depurating its oysters after harvesting recommenced. Depuration involved the submersion of oysters in clean estuarine water, disinfected by ultra-violet radiation. This was a useful but not entirely effective means of ensuring their safety. Between 25 December 1996 and early January 1997, Mr Ryan consumed oysters purchased from the appellant and which had been harvested from Wallis Lake. On 3 February 1997 he was diagnosed with hepatitis A. After observing that the risk of injury to Mr Ryan from developing hepatitis A in the circumstances was not far-fetched or fanciful, Gummow and Hayne JJ considered what a reasonable response by the appellant to that risk would have been. They noted that no practicable test existed to detect the presence of hepatitis A in estuarine waters, and that existing tests for the detection of hepatitis A in oysters were both expensive and unreliable. There was simply no way to eliminate entirely the risk of viral contamination in the oysters grown at Wallis Lake.
Gummow and Hayne JJ stated that the only practical courses of action available to the appellant companies would have effectively seen them ceasing to cultivate and harvest oysters in Wallis Lake. Each option available to the appellants represented “alleviating action of the most difficult, expensive and inconvenient type”, such that it could only be required if “the magnitude of the risk and the degree of probability of its occurrence are great indeed”. Their Honours went on to observe that although a risk of viral contamination was always present, this was the first recorded outbreak of hepatitis A, or any other oyster related disease caused by Wallis Lake oysters in almost a century of oyster growing. Gummow and Hayne JJ concluded that “[n]otwithstanding the significant magnitude of risk of harm that eventuated in this case, the degree of probability of its occurrence cannot be said to justify the difficulty, expensive and inconvenient alleviating actions contended for by the [respondent]”.
The onus falls on the plaintiff to establish that there was a reasonably practicable precaution that could have been taken to avoid the risk of injury: Vozza v Tooth & Co Ltd (1964) 112 CLR 316 (Vozza). In Vozza, the plaintiff suffered a badly cut hand when a bottle burst as he was removing it from a pasteuriser. This was a relatively common occurrence, and the plaintiff had been provided with leather gloves to protect his hands. The gloves were described as “not flimsy”, but were not always proof against piercing by sharp pieces of glass. The plaintiff alleged that stouter gloves should have been provided. Windeyer J, with whom the rest of the Court agreed, dismissed this argument, saying, at 322:
The jury here really had no evidence that a different form of glove could have been provided, which would have been practically usable, and which would have prevented the injury that this plaintiff suffered.
It was not, we should think, incumbent upon [the plaintiff] to prove the precise manner in which the accident occurred if the correct inference from the proved facts is that it resulted from negligence for which the respondents would be liable.
The absence of prior incidents of eventuation of a risk of injury will not always be conclusive as to whether the risk was insignificant. In Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301, the plurality of the High Court (Mason, Wilson and Dawson JJ) said, at 309, “the weight that will attach to an accident-free history involves a question of fact to be determined in the light of all the relevant circumstances”. See also Jandson Pty Ltd v Welsh [2008] NSWCA 317.
It is apparent from the above that determination of breach of a duty of care by failure to take precautions against a foreseeable risk of harm involves consideration of multiple matters, and attribution of weight to each of those matters. The attribution of weight to individual matters is something upon which minds may reasonably differ, but in conducting a “real review” of the primary judge’s decision it is not only permissible for this Court to determine for itself the weight to be given to particular matters, it is obligatory.
The expert testimony
On behalf of the appellant three reports from Ms Julie Armour were tendered before the primary judge. Ms Armour held qualifications in human movement studies and biomechanics. She had worked as an academic in anatomy and biomechanics at universities and then in institutions specialising in sports science, rehabilitation and occupational health in Australia and the UK. She had also worked as a consultant to private and public sector organisations in incident prevention and investigation. Ms Armour’s qualifications have not been challenged.
Ms Armour was instructed that the appellant suffered injuries, including breaking both wrists, when she fell off the sling while practicing a manoeuvre called a “pancake” manoeuvre. Ms Armour was instructed that the manoeuvre involved the participant climbing to the top of the sling and hanging from the rope with the sling between the participant’s legs. The participant then wrapped the sling around their right leg, before releasing their grip on the rope, to fall and hang by their right leg.
In her first report, Ms Armour said, at [28]:
The stopping distance is also important to the degree of damage caused by a fall… The shorter the distance, i.e. the more un-yielding [sic] the landing material, the greater is the deceleration. So, for example, a thicker crash mat with greater shocking [sic] absorbing capabilities will have a large distance of penetration into the landing material.
Later, at [31], she said that “[i]n any athletic pursuit that requires it [sic] participants to be at height, there is always a potential to fall and be injured. The steps taken to prevent that injury are important…”.
Ms Armour was provided with two videos depicting what she understood to be the “pancake” or “hip lock” manoeuvre performed in two different ways. As noted, the primary judge resolved the issue of what manoeuvre the appellant was undertaking at the time of the fall in favour of the respondent; he was satisfied that she was performing a hip lock manoeuvre as described by the respondent and Ms Weijers. There is some minor difference between what is depicted in the two videos particularly as video two shows the manoeuvre being performed on two “silks”, which are not connected at the bottom as the sling is. This means that the manoeuvre is performed at a slightly lower height in video two. We will say at this point, because it is important in addressing Ms Armour’s reports, that in our opinion it makes no difference what precise manoeuvre the appellant was performing; it is sufficient to understand that she was performing a manoeuvre towards the top of the sling, which carried with it obvious potential for a fall and consequent injury. Performing the hip lock manoeuvre towards the top of the sling was an activity anticipated as part of the lesson, as stated by Ms Weijers.
With regard to the matter of primary importance to this appeal, the provision and use of crash mats, Ms Armour said, at [50]-[51]:
The failure to provide a suitable crash mat of appropriate size and appropriate thickness with suitable energy absorbing capabilities was the main failure of the [respondent] which could have significantly reduced the risk of the injury exposure that the [appellant] subsequently experienced.
The author would suggest that on the face of it, the lack of an appropriate crash mat and performance of a hiplock enabling skill at ground level first, were the main contributors to this injury and the risk posed by these factors could have been easily resolved.
Video 1
If the [respondent] had provided appropriate crashmat of adequate size for the fall zone and allowed the [appellant] to perform enabling skills at ground level prior to progressing to this skill at height, it is very likely that the injury suffered by the [appellant] would been [sic] significantly reduced in severity such that perhaps a soft tissue sprain or strain would have been a possible outcome.
At 35 secs of Video 2
If the [respondent] had provided appropriate crashmat of adequate size for the fall zone with this skill being carried out from a lower height, it is very likely that the injury suffered by the [appellant] would been [sic] significantly reduced in severity, if any injury resulted at all.
(a) whether the respondent discharged its obligations to the appellant particularly with regard to having the appropriate hazard minimisation mechanisms in place;
(b) whether the crash mats which were made available to the appellant were appropriate to minimise the risk of injury to the appellant; and
(c) his comments on the report of Julie Armour.
In my opinion, on balance, the crash mats, which were made available to the [appellant], were appropriate to minimise the risk of injury to the [appellant]. However, it is not possible to entirely remove the risk of upper limb injury or all other injuries with a crash mat. The reasons for my opinion are:
(a) The crash mats available to the [appellant] appear to be typical crash mats, used for floor level and slightly elevated gymnastic activities. I have not undertaken any impact testing of the mats.
(b) The crash mats would have attenuated some of the [appellant’s] kinetic energy that she attained as a result of her fall. This would have had a protective effect with respect of her upper limb injuries, alleged head injury(s), and general body injuries.
(c) The ability of the crash mat to eliminate the risk of injury is dependent upon the fall height. If, for example, the [appellant] fell from a height similar to that attained in Figure 1 (hip height during the skill is similar to hip height in standing), then there is a high likelihood that the mat would have prevented the injuries. Alternatively, if the [appellant] was elevated as per the posture in Figure 2 and fell freely, then it is unlikely that the crash mat would have eliminated the risk of injury. However, this opinion is qualified, because the rate at which the person falls may be less than in a free fall, as the person might slip out of the sling rather than drop suddenly.
(d) The combination of spotting and crash mats would have a ‘safer’ alternative than a single crash mat, while students are learning skills in an elevated position, which might involve inverted postures and no hand holds.
(e) The mats are light and it would be anticipated that a person capable of attending the classes would be able to transfer and place a mat as required.
(f) It is possible to place two or three mats on top of each other, to create a more effective crash mat (i.e. greater energy attenuating capacity in anticipation of falls from a greater height).
(emphasis added)
We would observe that in the above extract Dr McIntosh expresses and expands upon two very different opinions. The first is that the crash mats available in the studio were appropriate to minimise the risk of injury to the appellant. The second is that it is not possible to entirely remove the risk of injury by use of a crash mat. The respondent’s duty to the appellant did not extend to a duty to eliminate all risk of injury. The nature of the activity undertaken carried inevitable risk of injury. The duty imposed on the respondent was to take reasonable steps to avoid serious injury to the appellant in the event of a fall while attempting the level III hip lock manoeuvre. Of some significance is Dr McIntosh’s opinion, at [8.21] that “Ms Weijers’ description of the incident is entirely consistent with the [appellant’s] upper limb injuries and general bruising or discomfort to her lower limbs. Under these circumstances, a crash mat would have offered considerable protection to the [appellant]”.
In the conclusion to his report, Dr McIntosh stated that the respondent had “discharged its obligations to the [appellant], particularly with respect to having appropriate harm minimisation mechanisms in place”. This statement does not sit well with the above-quoted portions of his report, concerning the inadequacy of the yoga mats in use at the time of the accident, if it was Dr McIntosh’s intention to suggest that there was no breach of the respondent’s duty to the appellant by reason of the failure to insist upon the use of the crash mat. In our opinion, the proper interpretation to be given to this statement by Dr McIntosh, consistent with the whole of his report, is that the respondent had discharged its obligation to the appellant by providing access to the crash mats, which he considered to be of sufficient size and thickness to protect the appellant from injury in the event of a fall from the sling such as occurred.
An expert report from Mr Armanasco, a sports injury expert, dated 25 June 2018, was tendered by the respondent. Mr Armanasco holds tertiary qualifications in Physical Education and Occupational Health and Safety and Ergonomics. He has experience as an elite sports coach in gymnastics. His expertise was not challenged. Relevantly for the present purposes, Mr Armanasco was asked to answer the following questions: (a) whether the respondent discharged its obligations to the appellant particularly with respect to having appropriate hazard minimisation mechanisms in place; and
(b) whether the crash mats, which were made available to the appellant, were appropriate to minimise the risk of injury to the appellant.
Mr Armanasco noted that the appellant’s injuries occurred as a result of a fall from “an unknown drop height”. Based on the information available to him he posited three scenarios with a maximum fall height of approximately 1.8 metres and a minimum fall height of approximately 1.1 metres. One of those scenarios envisaged a fall with one or more of the appellant’s feet caught or remaining in the loop at the bottom of the sling. In such a fall, it may be anticipated that the appellant’s upper body would fall further away from the sling than if she simply fell without having a foot in the loop.
Mr Armanasco was instructed that two forms of matting was provided by the respondent: what he referred to as “gym” mats (2400 mm x 1800 mm x 50 mm thick), and yoga mats (1800 mm x 600 mm x 20 mm). It is clear that what Mr Armanasco referred to as gym mats were the same as what other witnesses referred to as crash mats. The measurements provided to Mr Armanasco of the dimensions of the crash mats were different to those the primary judge determined to be the case, but for the present purposes that is not important.
Mr Armanasco noted that the “matting” was available for use and easily accessible. He was instructed that the “mats” were not often used because activities are generally conducted at low heights and with hands in contact with the sling at all times. Mr Armanasco noted, at [52]-[53]:
With regard to the specific risk mitigation measures that are relevant to the matter are detailed below:
o The activity ‘the hiplock’ was appropriate for execution by the [appellant]. In fact, I am instructed she had performed the skill previously with success in other classes.
o I am instructed that the [appellant] was physically capable (had the required hang, shoulder and core strength) of performing the skill (I am instructed by Sophie Jenkins that she was at the advanced level in Aerial Slings).
o She received clear instruction and demonstration of the skill from her instructor Carla Weijers prior to the performance of the skill
o She was instructed that to perform this skill at level 3, a spotter was required and not to perform the skill without a spotter
o The equipment was in good condition
o She was working with her usual partner (Anna) and potential spotter if required
o Matting was available to use if required o Her instructor Carla was experienced and trained (advanced or gold level certified by the International Pole Dance Fitness Association)
o Her instructor was first aid trained
o A warm up was provided
o There were no other unusual circumstances or conditions that potentially contributed (causative factor) to the incident.
It is my opinion, based on the information that has been provided that the defendant discharged its obligations to the [appellant] with respect to having appropriate hazard minimisation mechanisms and risk reduction strategies in place.
(emphasis added)
We have set out both of the paragraphs in full in order to provide context to paragraph [53]; it is plain that paragraph [53] follows upon, and is based upon, the material in paragraph [52]. This is significant because in paragraph [52] (and indeed in the rest of the report) Mr Armanasco makes no mention of the fact that at the time of the accident yoga mats and not crash mats were being used as fall protection. The opinion expressed by Mr Armanasco at paragraph [53] is based on the availability of crash mats, not their use.
In response to the specific question, whether the crash mats that were made available to the appellant were appropriate to minimise the risk of injury to the appellant, Mr Armanasco said, at [54]-[55]:
With regard to the current matter, it is difficult to comment until further details of the incident are made clear. Depending on the mechanics of the landing, it is still possible for injury to occur even with substantial matting in place.
The matting provided by iSpin may or may not have decreased the severity of the injury to the [appellant]. The potential effectiveness of matting is a complex matter and requires more investigation in order to give meaningful comment. Further comment could be provided when more information regarding the incident is provided.
In paragraph [54], as set out above, Mr Armanasco has not addressed the question asked of him; certainly he has expressed no opinion on the question. Similarly, in paragraph [55], Mr Armanasco expressed no opinion on whether the use of the crash mats may have decreased the severity of the appellant’s injuries.
In summary, on the issues of significance in this appeal, Mr Armanasco has expressed no useful opinions.
Ms Armour’s second report is dated 2 August 2018. It is a supplementary report in response to the report obtained by the respondent’s lawyers from Dr McIntosh. Ms Armour took issue with some, presently irrelevant, aspects of Dr McIntosh’s report, before concluding, at [44]:
The author reiterates that if the [respondent] had provided appropriate crashmat of adequate size for the fall zone and allowed the [appellant] to perform enabling skills at ground level prior to progressing to this skill at height, it is very likely that the injury suffered by the [appellant] would have been significantly reduced in severity, if any injury resulted at all.
Consideration – breach of duty
In our opinion, the primary judge erred in determining that the evidence did not establish a breach of the respondent’s duty by failing to insist upon the use of crash mats when the appellant was attempting to perform the level III hip lock manoeuvre. The risk of a fall from the top of the sling was, as the primary judge concluded, plainly foreseeable. This was so, despite evidence of no prior falls or accidents within the iSpin studio. This was a case where the lack of prior accident history, while relevant, does not conclusively establish a low risk of injury if crash mats, rather than the yoga mat, were not used. The expert testimony established that the thin yoga mats provided were inadequate to protect a person performing the level III hip lock manoeuvre from injury if they fell from the top of the sling. A reasonable person in the position of the respondent would have provided adequate fall protection by way of crash matting to protect against injury occasioned by a fall from the top of the sling. If a participant were to fall from a lower height, the matting would provide even greater protection. In other words, the reasonable person in the position of the respondent would provide matting adequate to protect a participant from injury by reason of a fall from the greatest height anticipated having regard to the manoeuvres to be undertaken. The risk of injury by not using the crash mats may not have been high, but in our opinion it was not low. The risk of significant injury if a person fell from the top of the sling was substantial.
The respondent submitted that the “fatal deficiency” in the appellant’s case was that she had “never grappled with the issue of the detail of the alleged breach”. She submitted that it was insufficient for the appellant to assert that the respondent had a duty to provide “adequate fall protection” or to provide “as many mats as would have been necessary to prevent the [appellant’s] injuries”. The respondent criticised the expert testimony for similar inexactitude. The respondent submitted that it was incumbent on the appellant to lead evidence to establish how many mats, and of what size, type and construction, ought to have been provided and precisely where, and in what configuration, they ought to have been placed. In our opinion, these submissions should not be accepted. This was not a case where there was, or could be, any suggestion that there was no reasonably practicable method of reducing the foreseeable risk of injury to the appellant in undertaking the level III hip lock manoeuvre. A reasonable person in the position of the respondent would have provided fall protection, most probably by way of crash matting, and required the participants to use it. There could be no suggestion that this was not possible, or would place an unacceptable burden on the respondent. The expert testimony strongly suggests that the crash mats which the respondent had on site, in appropriate numbers and configuration, would have acted to protect the appellant from injury in a fall. In any event, the evidence of Dr McIntosh, properly understood, was to the effect that the crash mats on site were adequate to either minimise or eliminate the risk of injury to the appellant from a fall, depending on the height from which she fell. Dr McIntosh undertook a site visit to the respondent’s studio and took photographs of “the area where the incident occurred and the crash mats” (emphasis added). In paragraph [8.11] of his report, Dr McIntosh implicitly agrees with Ms Armour that “a crash mat covering the fall zone” (emphasis added) was a suitable risk control mechanism, and he then goes on to say that the crash mats provided by the respondent were suitable for this purpose. In doing so, Dr McIntosh plainly agrees that one layer of mats would have been required to discharge the respondent’s duty to the appellant. This addresses the respondent’s complaints concerning how many layers of mats were required.
Another issue raised by the respondent was the area to be covered by the crash mats. The manoeuvre being undertaken by the appellant at the time she fell was a level III hip lock manoeuvre. She performed it incorrectly, and fell from a height, according to expert evidence, which was, on the balance of probabilities, no greater than 1.8 metres above the ground. There is no suggestion that the appellant was swinging on the sling or in any other way misusing the apparatus. A fall from a sling in such circumstances has a finite fall zone. It is probable that the outer limit of this fall zone is delineated by the distance from the sling that a participant would be likely to land if their foot became caught in the loop at the base of the sling while either falling or dismounting, and they fell outwards from the sling. This distance may well vary depending on the height of the participant, but it is a finite and ascertainable distance. A reasonable person in the position of the respondent would have placed crash mats under the sling covering the anticipated fall zone.
In the absence of any suggestion that the appellant was swinging on the sling or in some other way misusing it, the only reasonable inference is that she fell within the anticipated fall zone.
It will be apparent from the above that we are satisfied the primary judge erred in determining that the evidence did not establish a breach by the respondent of its duty towards the appellant, and in determining that if reasonable care required that a crash mat or mats be placed under the sling (it did), factual causation would not be established. The primary judge reasoned that in the absence of findings about how the appellant fell, it was not possible to say she fell within the area which would have been protected by crash mats. On the basis of the evidence of Ms Armour and Dr McIntosh, we do not share the primary judge’s difficulty on the issue of causation. On the balance of probabilities, the appellant’s injuries would have been avoided or, at worst, significantly reduced by the respondent requiring the appellant to use crash mats in the fall zone beneath the sling.
In our opinion, subject to addressing the respondent’s cross-appeal, the appellant’s appeal should be upheld and judgment entered in her favour. It is plain from the above that we are satisfied that the matters raised in the respondent’s notice of contention should be dismissed. Paragraphs 1 and 3 of that notice have been addressed by our analysis above. In relation to paragraph 2 we do not consider that the risk here should be so narrowly confined. In our view the relevant risk here included the risk that a student might through inadvertence or otherwise attempt the level lll hip lock manoeuvre without a spotter.
Contributory negligence
The primary judge found that the appellant was not asked to perform, and was not in fact performing, the “pancake” manoeuvre at the time she fell. He was satisfied she was performing the hip lock move, and in particular the level III hip lock manoeuvre. This did not involve the appellant releasing her grip from the sling at the top of the manoeuvre. The primary judge was satisfied that the appellant had been properly instructed in the performance of the manoeuvre by Ms Weijers before she attempted it. The appellant was an adult person who was experienced in the sling manoeuvres being taught at iSpin. She had previously been instructed in and performed the level III hip lock manoeuvre. She had not been instructed to use a crash mat for fall protection and in these circumstances we do not see it as unreasonable that she did not use one on the occasion of her accident. However, it does seem likely that the combination of the appellant's failure to follow the instructions given to her as to the correct method of performing the manoeuvre, and her failure to use a spotter, materially contributed to her fall. This is because whatever the precise mechanism of that fall it is probable that she let go of the sling and/or failed to successfully place her foot into the sling as she tried to complete the manoeuvre.
Section 102(1)(b) of the Wrongs Act requires the Court to reduce the damages recoverable, to such extent as the Court considers just and equitable, having regard to the claimant’s share in the responsibility for the damage. In assessing the extent to which the appellant’s damages should be reduced by reason of her own failure to take reasonable care for her safety, we take into account that the respondent was the person in control of the class. She and Ms Weijers both had significant training and experience not possessed by the appellant which should have alerted them to the risk of injury by falling from the level III hip lock position onto the thin yoga mat. The greater responsibility for the appellant’s injuries rests with the respondent. In our opinion, it is just and equitable to reduce the appellant’s damages by one third by reason of her contributory negligence.
Damages
Costs
Orders
a. the judgment for the respondent entered by the primary judge is set aside, and in substitution there will be judgment for the appellant in the sum of $372,297.34;
b. the costs orders of 21 February and 14 March 2019 are set aside;
c. unless either party seeks a different costs order within 14 days of publication of these reasons, the respondent is to pay the appellant’s costs of the proceedings before the primary judge and the present appeal as agreed or assessed on a party-party basis.
I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns and Loukas-Karlsson and Acting Justice Crowe.
Associate:
Date:
Cornwall
Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2
(1986) 160 CLR 301
(1956) 96 CLR 18
(1964) 112 CLR 316
(1979) 142 CLR 531
(1980) 146 CLR 40