St Mary Star of the Sea College v Watt

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40601/00 STEIN JA IPP AJA STUDDERT J

ST MARY STAR OF THE SEA COLLEGE LIMITED v NAVANA JADE WATT

1 STEIN JA: I agree with Studdert J. 2 IPP AJA: I agree with Studdert J. 3 STUDDERT J: The respondent to this appeal, Navana Jade Watt, brought proceedings in the District Court against the appellant, St Mary Star of the Sea College Limited, claiming damages for negligence. The action was successful and resulted in a judgment in her favour in the sum of $182,378.15. In its appeal to this Court, the appellant seeks orders that the judgment be set aside and that judgment be entered in its favour. Consequential relief as to costs is also claimed. 4 The respondent was a pupil at St Mary Star of the Sea College at Wollongong and sustained injury during a gymnastic class in which she was participating on 26 June 1992. The respondent, who was then fourteen years of age, was one of eighteen students in the class. Some members of the class were doing exercises on the bar, others on the floor, and others on the vault. All these students, including the respondent, were under the supervision of a trainee teacher, Mr Kunkler. 5 The respondent was one of those engaged in the vaulting activity and the equipment provided for the exercise included a form of springboard described as a "beat" board, a vaulting horse and a landing mat or mats. There was no dispute that the respondent was injured whilst engaged in a vaulting exercise. However, there was a very live issue at the trial as to the precise circumstances in which the injuries were sustained. 6 It was Mr Kunkler's responsibility to supervise the students using the vaulting horse and in so doing to act as a "spotter". The spotter's task was to stand by the landing mat when a student performed a jump and if need be render assistance to the student if the jump went amiss and it was perceived harm could occur in the landing stage of the exercise. 7 The respondent's evidence was that at the time she sustained her injuries Mr Kunkler was not standing in the correct spotter's position immediately by the landing mat, but a few metres distant, having been talking to another pupil. According to the respondent, her jump did go amiss, she lost control of her movements and in consequence did not land on her feet on the landing mat as she should have done. Rather, according to the respondent, she landed on her upper back (T15-16): "Q. So when you came to the occasion when you ran up and attempted to perform a vault and suffered an injury, can tell the court, please, at the commencement of your run up did you know where Mr Kunkler was? Could you see him?

Q. Sorry, is that where you stood at the commencing point of your run up? You are describing it as off to your right?

Q. Was there some other activity going on in the vicinity where you saw him?

Q. When you commenced your run up can you recall seeing what he was doing?

Q. I started to ask you if you were able to see what the student he was talking to was engaged in?

Q. Now, could you then describe for me, please, what happened from your commencing to run and move towards the vault and starting to perform the manoeuvre?

Q. Could you say what happened, starting from your start off point, your commencing point for your run up to the vault, can you tell the court what happened on this incident where you were vaulting and had the injury?

A. I waited in line. I started my run up, started the jump, the take off, rather.

Q. Is that the same thing you have talked about before as a spring board when you were describing for his Honour how it was set out?

A. Run up, take off, place my hands on the vault, straddle my legs and instead of landing on my feet, I sort of flipped over in the air and landed on my back, on the crash mat.

Q. You said flipped over. Could you describe as accurately as you can what that movement was, flipping over. What part of you went over what other part and in what direction?

A. I got a little bit too much height and instead of just travelling forward and my legs coming back together on the crash mat, my rear end went over my head and I landed on my back on the crash mat.

Q. Just to be perfectly clear, what part of you first hit on or first touched the mat after going over the vault on this occasion?

A. Intense pain." 8 Mr Kunkler's evidence conflicted with that of the respondent. His evidence was that he was standing in the correct spotter's position and that the respondent, having straddled the horse, landed on the mat on her feet, but with her weight forward, and that she then went into "a forward roll" (T189): "Q. Where were you looking?

A. When Navana actually began her run up, I was talking to a student. I turned to Navana while she was running.

Q. As she continued running, where were you looking?

A. I was looking at Navana. I watched Navana's run up and approach to the box.

Q. When she jumped off the beat board, where were you looking?

Q. And what did she do as she jumped off the beat board?

A. It was a very similar vault to her previous vault. Again, her head was forward and chest was down. When she struck the vault with her hands, her legs were in a straddle position. Chest was forward and head was down but she was going through, it was very similar to her previous vault. As she came through I noticed she was pretty much in a position to repeat what she did in her previous vault. She wasn't going to land with her feet together. She wasn't going to land in a straddle position standing upright. So at that point I was aware she was going to go into a forward roll and like the previous vault, I allowed her to do that forward roll knowing that is a safe way in which to complete a straddle vault.

Q. As I understand it, she landed on the mat with her feet in a straddle position?

A. Her balance was forward. Because her chest was down and she hadn't lifted her chin at the end of her vault, her weight was forward and her balance was forward and then she, as she landed and struck the mat with feet and hands, or feet on the ground and hands forward, she proceeded to go into a forward roll and failed to adequately tuck her chin to her chest. At that point she did look awkward in her forward roll and from my opinion, her forward roll, the awkwardness of it was the lack of the tucking of the chin.

Q. As she was doing that forward roll did something happen?

A. As [she] went through that forward roll Navana screamed out in pain and complained of her back. She screamed that her back was hurt and she remained lying there in that supine position." 9 On the above accounts, it was common ground between the respondent and Mr Kunkler that the teacher did not restrain the movement of the respondent or attempt to intervene before the respondent suffered her injuries. On the respondent's case, he should have done so; on the appellant's case, no intervention was warranted, and it was appropriate to allow the respondent to complete her "forward roll" which began after she had landed on her feet, weight forward in the way he had described. 10 The respondent claimed that the harm suffered was due to the negligence of Mr Kunkler and to the provision by the appellant of a deficient landing mat. The trial judge did not find that the mat was deficient but he did find that the teacher was negligent. The critical findings in this regard appear in the following extract from the judgment: "Having heard from witnesses from both sides of the record with knowledge of the requirements of safe spotting of vaulters, I am satisfied that mishaps, even with the most skilled of vaulters are a very foreseeable hazard, and a skilled alert spotter attending to that function alone is the ordinary accepted way of reducing the hazard by engaging in decisive physical intervention to soften the impact between a vaulter and the mat when that is called for. I am persuaded that Mr Kunkler did not at the material time provide the spotting support to the plaintiff that ought to have been provided to prevent or reduce the risk of injury that the plaintiff suffered in this case. Why he so failed is not to point. I suspect that he really had his hands full at the time of this particular accident, and was mistakenly relying on the known skill of the plaintiff and the other vaulters and his instruction to them, to only to perform vaulting exercises within their skill and experience or capacity. This straddle vault attempted by the plaintiff was one within her capacity. Regrettably everything went wrong with it from the plaintiff's point of view, and from the time she left the vault, she was to put it blandly, almost comically out of control. Had Mr Kunkler been in the proper spotting position revealed by the testimony in this case, right beside the impact mat, so as to speedily intervene and guide the plaintiff's body to an ergonomically safer impact with the crash mat, on the probabilities her injury would not have occurred. I have accepted the plaintiff's evidence that he was not in that position. Mr Kunkler's assertion that he could not in any event efficiently intervene because of the plaintiff's bulk compared with his own, is hardly to point. Were that truly the case he should have prevented her vaulting under his care and instruction because he was incapable of providing the spotting assistance that he was bound to provide in the circumstances. It is beyond argument that the necessary relationship establishing a duty of care existed between the plaintiff and Mr Kunkler and the defendant. I find that injury of the type that the plaintiff sustained was quite foreseeable in the circumstances. The risk of that injury was not a slight one, but a very real one calling for the positive activity by Mr Kunkler that I have referred to above. Mr Kunkler did not engage in that activity and his failure to do so in my judgment was a breach of the duty of care that he and the defendant owed to the plaintiff in the circumstances." 11 Whilst the above outline tends to suggest that the relevant facts were within a short compass, the hearing occupied seventeen sitting days or part thereof. The respondent's case on liability depended essentially on her evidence as to what happened to bring about her accident and the evidence of Dr Adams, ergonomist and safety consultant. The appellant relied principally upon the evidence of Mr Kunkler, another trainee teacher, Miss Furz, a student, Miss Jauncey, and an expert, Mr Woods. 12 The appellant in the amended notice of appeal set out no less than twenty-eight grounds of appeal directed to the issue of liability. There were further grounds directed to the findings as to damages but the grounds as to damages were not pressed. This means that if the appeal on liability fails the award of damages will not be disturbed. 13 When the hearing before this Court began, Mr Kennedy of Senior Counsel, acknowledged that it was inappropriate to pursue the twenty-eight numbered grounds as discrete grounds of appeal. Many of them involved overlapping, and Mr Kennedy presented a written outline of submissions upon which the appeal was pursued. In that outline, grounds 4, 18 and 27 of the grounds set out in the notice of appeal filed were expressly abandoned. 14 The first and the principal ground of challenge to the decision of the trial judge is that his Honour erred in accepting the respondent's account of what happened bearing in mind the contrary evidence that had been placed before him by the appellant. In short, the appellant challenges the findings of fact made by the judge based upon his assessment of the credibility of the witnesses called. The second ground of challenge is on the issue of causation. Thirdly, the appellant has submitted that the judge erred on contributory negligence.

(1) That the respondent's evidence should not have been accepted as opposed to the evidence of Mr Kunkler, Miss Furz and Miss Jauncey 15 I referred to the length of the hearing. The respondent was in the witness box on six separate days; Mr Kunkler gave evidence on three separate days. Both witnesses were exposed to testing cross examination and the judge had the benefit of being able to assess the demeanour of the witnesses in what were no doubt demanding experiences for them in the witness box. This Court, of course, has no similar advantage. 16 His Honour remarked in his judgment that the lengthy hearing provided him "with ample opportunity to observe the witnesses on the disputed issues and form a firm view of where the truth lay as per the civil standard of proof." (RB 15) 17 His Honour expressed these findings on the issue of credibility of the respondent (RB 17): "The circumstances in which the plaintiff sustained her ultimate injury have been in significant dispute in the trial. Every possible attack has been made on the credit of the plaintiff in this case. I have carefully observed her as a witness along with all the other witnesses called on this issue, and I am satisfied that in all essential elements the plaintiff's account of what happened is truthful and accurate."

Later (RB 20): "The plaintiff is a candid young lady, quite ready to make concessions possibly against her own interest. I am impressed by her demeanour as a witness."

Then (at RB 26-27): "The plaintiff has been attacked as one who is perpetuating her complaints for a variety of motives including gain in litigation. She has been attacked for no recall of entries in medical records created years ago. She is attacked as one who is exaggerating her level of disabilities. She has been attacked as a liar about the incident which caused her injury. The transcript reveals that the attack on the plaintiff's credibility was to say the least robust. She was tested to the limit. She passed this test in my judgment." 18 Referring to the credibility of Miss Jauncey, his Honour said (RB 19): "At this trial only one pupil of the class was called to support the defendant's version, and I do not accept her recollections as persuasive of corroboration of Mr Kunkler's account." 19 Then, referring to the evidence of the second trainee teacher, Miss Furz, his Honour said (RB 19): "Another prac. (student) teacher was called, and of her evidence I make the same comment." 20 Of Mr Kunkler, his Honour expressed this assessment (RB 20): "I found Mr Simon Kunkler's presentation before me as a quite uneasy one. He lost credibility when he testified at T.190 that for the purposes of first aid, for the reasons stated, he asked the plaintiff after her injury if she had a previous back injury, and she said 'yes' to him. So advised, he made no further enquiries to locate where the injury was. His account at T.191 is of saying to Ms Groeller, teacher, ('Navana has injured her back. It is a previous back injury that she may have injured'). I find an air of unreality about that asserted statement." 21 Then later, in a finding plainly related to Mr Kunkler, Miss Furz and Miss Jauncey, his Honour said (RB 20): "I am not impressed by the demeanour of the witnesses on the facts of injury called by the defendant." 22 The extremely formidable nature of the appellant's task in making good its primary challenge to the decision in this case is emphasised by reference to what was said in the much cited passage in the joint judgment of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1992-93) 177 CLR 472 at 479: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (See Brunskill (1985), 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989), 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990), 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' (SS Hontestroom v SS Sagaporack, [1927] AC 37, at p 47). or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (Brunskill (1985) 59 ALJR, at p 844; 62 ALR, at p 57)." 23 In this case the findings made by his Honour depended substantially upon his assessment of the credibility of the respondent, and of Mr Kunkler with such support as the other witnesses mentioned were considered as having afforded him. Following consideration of the evidence and the submissions, I do not consider that it has been shown that the judge acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" , or that the appellant has made good the submission that the judge acted on evidence that was "glaringly improbable" . However, Mr Kennedy pointed to a number of features on the credibility issue which I should discretely address. 24 In challenging the assessment of the trial judge of the credibility of the respondent, the appellant placed reliance upon a handwritten statement made by her, which became Exhibit J in the District Court hearing. That statement, which bears a date in October 1992, commences: "Mr Kunkler was talking to someone. I waited till I thought he was watching me, then I ran and did a straddle over the vault and instead of standing straight up I went into a forward roll, I heard my back crack when I landed…" 25 It was submitted that that statement was inconsistent with the respondent's sworn evidence and that his Honour must have either ignored it or not given it proper weight, because that handwritten account was properly to be regarded as conveying that the respondent landed on her feet before going into a forward roll. So it was argued it accorded with Mr Kunkler's account. 26 The respondent was cross examined about the above writing and in the course of her cross examination gave this explanation upon being asked about the language chosen in the document: "Q. And having done a straddle over the vault, 'instead of standing up I went into a forward roll', what you are putting as opposing ideas there having completed in the past the vault was what you were supposed to do was stand up, but what you did do was a forward roll. Isn't that the case?

A. No, what I meant was that I rolled forward in the air. I didn't land on my feet at all. So therefore, I did not land on my feet and then go into a forward roll. I rolled forward in the air." 27 It was acknowledged that the respondent did not resile from that explanation elsewhere in her evidence. Moreover, it was submitted by Mr Slattery that what appears in Exhibit J is consistent with the respondent's oral evidence in that she wrote of hearing the noise in her back when she landed which, of course, on her version was not a landing on her feet before doing a roll forward but a landing on her back. It seems to me that there is merit in this submission. To my mind, it was open to the trial judge to decide that Exhibit J was not inconsistent with the respondent's account. 28 The appellant's written submissions identify other features of the case, apart from Exhibit J, which required the consideration of the judge in assessing the respondent's credibility. These included the following:

(a) the manner in which the claim was pleaded in the statement of claim, and the expression of the particulars of negligence that were furnished. The statement of claim prior to its amendment during the hearing read in part: "In the course of the physical education class the plaintiff was instructed to straddle vault over a wooden horse and at the conclusion of the vault to perform a forward roll and in the course of so doing the plaintiff was injured." The amendment deleted "wooden" and substituted for it "vaulting", and deleted the words "and at the conclusion of the vault to perform a forward roll" . Reference in the particulars to carrying out a "forward roll" was replaced by reference to "the manoeuvre" , a manoeuvre not precisely described. In the particulars of negligence first given, the allegation of negligence against Mr Kunkler was one of failure to instruct. It was in the amended particulars at trial that failure to properly "spot" was first asserted. These changes, it was argued, amounted to a significant shift in the respondent's case;

(b) the histories recorded by doctors who had occasion to examine the respondent, which did not accord with the respondent's oral evidence:: (i) Dr Wallace saw the respondent in May 1996 and October 1997 and gave evidence to the effect that his understanding of the respondent's description of how she was injured was that she landed awkwardly after the vault and that her momentum carried her forward in a tumbling motion; (ii) Dr Maloney understood from what the respondent had told him that she had done a roll badly and had ended up "scrunching" herself up, although he acknowledged that as a treating doctor he did not seek a full description of the mode of injury;

(c) evidence given by the respondent that particulars provided to the appellant's solicitors on her instructions in a letter of 22 February 1995 were incorrect: for example, the respondent conceded that the description of the mat in those particulars as being very thin was incorrect and indeed "untruthful" (White Appeal Book, p 121). 29 I have not sought to record exhaustively all those matters referred to in the appellant's submissions which it was argued should have caused the judge to disbelieve the respondent. These matters were matters on which, in the main, the respondent was tested in cross examination, as consideration of the transcript reveals, and no doubt the judge was addressed by counsel at the trial as to the significance that he should attach to such evidence. However, ultimately his Honour made his finding as to the respondent's credibility and that finding is one which I consider this Court is not able to disturb having regard to Devries (supra). 30 It was submitted that his Honour went astray in his fact finding task in referring to the investigations undertaken by the appellant into the respondent's accident and in concluding that in consequence of the course of investigations "cross pollinated recollections were created." 31 What his Honour said was this (Red Appeal Book 18): "Shortly following the accident an internal investigation and reporting process was engaged in at the defendant's behest, presumably triggered by the plaintiff's mother alerting the defendant to the likelihood of a claim against it by her daughter. The plaintiff's version of the facts as to how she hurt herself was not sought in this process. The pupils otherwise present in the class were asked to write accounts of what occurred and did so. The teaching staff in due course were instructed not to discuss the accident with the plaintiff. The process engaged in was a defensive one, in which by the nature of things, cross pollinated recollections were created." 32 There was evidence before the judge that the respondent's mother complained to the school about the accident and that it was understood that the school was being blamed for it. There was evidence of an investigation undertaken by the appellant and evidence that the teaching staff were instructed not to discuss the matter with the respondent. Ms Vatovec, a physical education teacher who was Ms Groeller's superior gave evidence as to these matters. In addition, Mr Kunkler gave evidence that the students were asked to write reports about the matter. 33 It was not inappropriate for his Honour to have described the investigation as being a "defensive" one, in the sense that it was plainly undertaken in preparation for possible litigation. 34 A statement from Ms Groeller which became Exhibit 17 was made six days after the respondent's accident. It recorded that Ms Groeller had been called to the hall by Ms Furz: "to attend to an injury sustained by Navana Watt. My Elective Physical Education class had been in the care of Simon Kunkler a 4th year practicing Physical Education teacher from the University of Wollongong. Both Simon and Lenore's accounts of the accident informed me that Navana had been doing a straddle through vault and upon landing in a straddle on the crash mat chose to roll forward. Failing to tuck her head adequately she landed a little awkwardly on her head. However, her momentum allowed her to roll forward without difficulty to finish in a supine position on the crash mat. She immediately complained of lower back pain." 35 The evidence given by Miss Furz at the trial, to which I shall make further reference shortly, made it plain that she had not seen the respondent land and, indeed, that she was not in a position to do so. It was an appropriate inference that in what Ms Groeller wrote, she drew in part upon what she had been told by Mr Kunkler and in part by what she had been told by Miss Furz. It may be that a consideration of Exhibit 17 prompted his Honour to say what he did about cross pollination. Whether this be so or not, I am not persuaded by what his Honour said in the passage above extracted that the judge misdirected himself in his approach to his assessment of the evidence of any one of the witnesses upon whose evidence the appellant's case depended. 36 It was further submitted on behalf of the appellant that absent any explanation for the appellant's failure to introduce their evidence, the judge was in error in drawing inferences adverse to it in relation to the failure to call as witnesses other pupils who were in attendance in the hall when the plaintiff had her accident. 37 However, Mr Kennedy fairly conceded that it was not clear whether the judge did in fact draw any such adverse inference, and I am not satisfied that his Honour did so. His Honour appears to have been dealing in the passage in his judgment upon which this submission focuses with a contention advanced on behalf of the appellant that the respondent should have called her fellow students who were present. His Honour rejected that submission and in doing so referred to the fact that the respondent had prematurely left the appellant's college and she was a young person of limited resources, and that it was the appellant which had taken statements from the pupils. 38 In expressing his assessment of the evidence of Mr Kunkler, his Honour pointed to part of his evidence in particular which led the judge to conclude that his presentation was "a quite uneasy one" . However, when dealing with Miss Furz and Miss Jauncey, his Honour said only that he was not impressed by their demeanour, and that he did not accept their recollections, "as persuasive of corroboration of Mr Kunkler's account." 39 Unlike Mr Kunkler, neither Miss Furz nor Miss Jauncey spent days in the witness box. The evidence of each of these witnesses was relatively short. Nevertheless, the exposure of each afforded the judge an opportunity to form an impression of her and it was essentially a matter for the judge to determine how demeanour influenced his assessment of her. Nor do I consider the judge was required to go into further detail as to what it was about the demeanour of either witness that produced his unfavourable impression of her. 40 As I understand what his Honour said concerning the recollection of each of these witnesses, he did not regard such recollection as being adequate and such as to afford reliable support for Mr Kunkler's account. 41 Miss Furz was not participating in the supervision of the pupils. Her role was that of an observer, seated on a bench against the wall at the entry end of the hall, which was described by her as being the size of a basketball court "with a little run off around the sides." Miss Furz was approximately half the length of the hall away from the vaulting box and on the opposite side of it from that at which Mr Kunkler was observed by her and at which the respondent was injured. His Honour may well have considered her position placed her at a disadvantage in making observations of the vaulting place, particularly in seeing how the respondent landed. The witness could not remember whether there were any floor exercises going on, nor how many were in the class that day. The witness could recall going over to where the accident happened afterwards, but apparently could not recall going to tell Ms Groeller that the respondent had been injured. Yet Ms Groeller, who was Mr Kunkler's immediate superior, and Mr Kunkler said that Miss Furz went to fetch Ms Groeller. This is what brought her to the scene. 42 Miss Jauncey conceded in answer to a general question that her memory of events in 1992 was less than certain and, significantly, in the course of her evidence in chief, when questioned about what she saw happen to the respondent, gave the following responses to the following questions (T 493): "Q. With respect to the vault which I was asking about, immediately prior to the injury, did you see her do a two-thirds or three quarters complete somersault? A. No, I didn't. Q. Did that happen? OBJECTION A. I don't remember." 43 A reasonable explanation for the findings that the judge made about Miss Furz and Miss Jauncey is to be found in the evidence reviewed, and I am not persuaded that the failure of his Honour to express his reasons for those findings more fully than he did constituted any error of law. 44 It was submitted that the judge was in error in not referring in his judgment to the evidence of Mr Woods. That evidence, it was submitted, assumed relevance, in particular on whether the respondent was to be believed concerning her account of the accident. 45 Mr Woods was a physical education teacher with over twenty-five years experience in teaching gymnastics. He was asked a number of questions relevant to the issue as to whether it was possible that the respondent may have lost control of her movements in the manner she described. Mr Woods was asked the following questions and gave the following responses in his evidence in chief (T 566): "Q. I want you to assume this version of what occurred that day. The plaintiff ran up, jumped on the beat board, did a straddle vault and instead of landing on her feet, lifted over in the air and landed on her back on the crash mat. Her rear end went over her head and she landed on her back. Have you ever seen anyone do that in your years of watching children do straddle vaults?

A. No, I haven't. Not off a beat board or a springboard or mini tramp.

Q. I want to put another description of the same extent just so we have a clear understanding. She ran in, jumped on the beat board and whilst doing the straddle vault, did a complete two-third to three quarters somersault landing on her thoracic spine a little above the waist line. Have you ever seen someone doing this while doing a straddle vault in the years you have been teaching gymnastics?

Q. She ran in, jumped on the beat board, started doing a straddle vault and then did a complete somersault landing where her fractures were, that is landing on a part of the spine a little above the waist line?

Q. In your opinion, applying your knowledge of beat boards and assuming this is a 70 kilo, 5 foot 4 to 5 foot 6 tall year 8 student, 14 and a half years of age, is it possible from a beat board to get elevation of the kind that I have described in both those two descriptions of the accident? That is sufficient elevation from a beat board to do two thirds or three quarters of a complete somersault whilst attempting a straddle vault?

A. No, not in my opinion." 46 However, in cross examination it became apparent that in the above responses Mr Woods was dealing only with what he defined as a pure form of straddle, namely one at the end of which the gymnast landed on his feet (T 567): "Q. Just in relation to that last answer you gave, you are not prepared to say that it is the proposition of gymnast vaulting, intending to do a straddle, that is totally impossible for them to go into a forward rotation during that straddle, are you? That is not your opinion, is it?

Q. You are not meaning to say by your last answer to my learned friend that it is absolutely impossible for a gymnast attempting a straddle to go into forward rotation during that straddle, are you?

A. Well, in doing a vault, a straddle, the gymnast has put her hands on the vault.

Q. Are you saying it is absolutely impossible for a gymnast to go into forward rotation whilst attempting a straddle?

Q. No, go into forward rotation whilst attempting a straddle vault?

Q. What do you mean by the pure form of a straddle when you say that?

A. Well once the athlete lands on their feet at the end of the straddle, that is the end of the straddle." 47 An acceptance of Mr Woods' evidence did not compel the conclusion that the respondent could not have lost control of her exercise in the manner in which she claimed that she did, and I do not consider that it was incumbent upon the judge to make express reference to the detail of the evidence of Mr Woods when stating his reasons for accepting the evidence given by the respondent. I should add that it was not put to Dr Adams that the accident could not have happened in the way the respondent described. 48 Mr Woods also gave evidence which was relevant to the issue of causation, to which issue I now turn.

(2) That the judge erred in finding Mr Kunkler's conduct was causative of the harm suffered 49 It was submitted on behalf of the appellant that the respondent failed to establish that if the respondent's version was correct there was anything Mr Kunkler could have done to prevent the respondent's injuries. All that could have been done to minimise the risk of injury was to provide proper matting, and the judge was not persuaded by the respondent's case that the matting was deficient. 50 The relevant finding made by the trial judge on causation was expressed in the fourth of the paragraphs of that part of the judgment set out in para 10 above. The judge found, contrary to the submission here advanced, that if Mr Kunkler had been standing in the correct spotting position, speedy intervention and guidance by him would probably have prevented injury. 51 The judge referred to the role of the spotter at the commencement of that part of his judgment I have set out in para 10. The witnesses to whom his Honour was referring there doubtless included Dr Adams and Mr Woods. 52 Dr Adams is an ergonomist and safety management consultant. Relevantly to the ground presently under consideration, Dr Adams gave the following evidence (T 173-174): "Q. A spotter's role, when working with experienced gymnasts, is minimal assistance to assist with balance and that is all it is, isn't it?

A. No, that is not all it is. If the person executes the particular manoeuvre safely, yes. But still, the most important part of the role [is] to be able to step in and assist if the person has lost control and by virtue of that is at risk of injury. That is the essential role of the spotter.

Q. If a person in doing a vault, a person weighting 70 kilos while doing a vault is coming over the box too low and a spotter grabs hold of that person in the way that you are suggesting and totally interferes with the vault, that creates a serious danger in itself, doesn't it?

A. I'm not suggesting grabbing hold in the way you are implying with that question. The grabbing hold would occur only after the person had landed in an off balance position and looked like stumbling forward into a potentially injurious roll. At that point the spotter could step in and help support the person. Not while they are still in mid air. If they are in mid air and appear to be off balance, as I had initially understood, the spotter's action in that case would be reach forward and get a hand under the person's neck and help turn them further into the roll and hopefully reduce the angle and force of impact." 53 Mr Woods was cross examined about the spotter's role in the prevention of injury to the vaulter and in the course of such cross examination said (T 576): "Q. Where the spotter sees potential for an injurious landing, proper spotting requires that he should intervene, doesn't it?

Q. And the main way in which proper spotting would be performed in that context would be to physically assist the vaulter, wouldn't it?

Q. And the physical assistance in the performance of proper spotting ought to achieve getting the vaulter into a safe position to land and ameliorate the risk of injury. You would agree with that, would you not?

Q. And that would normally mean trying to get them to land on their feet or legs, if possible?

A. Yes." 54 His Honour could have reviewed the detail of the evidence given by Dr Adams and Mr Woods referable to the issue of causation identified by Mr Kennedy, but it was not mandatory that he do so. It is evident from the context in which the finding here challenged was expressed that the judge was mindful of the evidence of these two experts and I am satisfied that the finding that appropriate intervention by Mr Kunkler would have avoided injury was a finding that was open to his Honour. I therefore consider that the appellant's submission on causation has not been established.

(3) The finding on contributory negligence 55 Finally, the appellant has submitted that the judge was in error in declining to find contributory negligence, because the respondent was an experienced gymnast and ought to have appreciated that prudence required that she not proceed with the vault until Mr Kunkler was in the correct position. 56 In finding that the appellant had failed to prove contributory negligence, his Honour had regard to the appellant's age and the circumstances in which the respondent undertook the vault. He accepted that the respondent proceeded when she did because she was taking her turn as the other vaulters were doing. His Honour found (Red Appeal Book 23): "she was doing what she believed was expected of her in the circumstances… To expect a person of her age and in those circumstances to refuse her turn to vault, and tell Mr Kunkler to move to a safe spotting position at her insistence, is an unreal expectation to my mind." 57 His Honour was entitled to so conclude and the finding that his Honour made that he was not satisfied that contributory negligence had been established was a finding which in my opinion this Court ought not disturb. 58 In the result, I do not consider that any of the grounds of appeal has been made out. I therefore propose that the appeal be dismissed with costs. **********

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