Conclusion
142In my opinion the primary judge erred in failing to find that Mr Draffin was in breach of his duty of care to the appellant when he required him to undertake the medicine ball exercise and that the respondent is vicariously responsible for that breach.
143I would therefore propose the following orders:
(a)Appeal allowed.
(b)Set aside the orders made by McCallum J on 10 December 2009 and in lieu thereof that there be a verdict and judgment for the appellant.
(c)Remit the proceedings to McCallum J for the purpose of assessing damages.
(d)The respondent to pay the appellant's costs of the proceedings to date before McCallum J.
(e)The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.
144WHEALY JA: I have had the advantage of reading the draft decision of Tobias JA. I have ultimately concluded that the primary judge erred in relation to the finding on breach of duty and, for that reason, I agree with the order proposed by Tobias JA. I also agree with Tobias JA in relation to the causation issue argument arising from the decision of the High Court in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420. I would like, however, to make some observations of my own in relation to the evidence on the breach of duty issue.
145The principal issue on appeal was a narrow one. The primary judge found that the appellant's injury was caused as follows:-
The pressure on the lumbar spine when the medicine ball was caught, combined with the flexion of the spine created by the twisting part of the exercise, probably enabled the disc to protrude in the manner described by Dr Hopcroft (at T.199) (Red Book, 68 at 173).
146There was no dispute about this causation finding on appeal. What was critically in issue, however, was whether Mr Draffin, the personal trainer employed by the respondent gymnasium, had been negligent in requiring the appellant to do the crunch exercise with the medicine ball and twist. The appellant's case was that the respondent had breached its duty of care (or its contract) because it required or permitted the appellant to carry out the medicine ball exercises when he was not fit enough, or well-conditioned enough, to do so. The plaintiff had also contended at trial that the injury had been caused or contributed to by a second exercise (leg press). The primary judge rejected this contention. This aspect of the trial, however, was not raised by the appellant in this appeal, either in relation to causation or breach.
147The primary judge had little difficulty in finding that Mr Draffin and the respondent owed a duty of care to the appellant. That duty was, as her Honour found, the need to observe the standard of care of a reasonable personal trainer, and that of a reasonable personal training studio. If the trainer were found to have breached his duty of care in setting and implementing the medicine ball exercise, there was no dispute that, as a consequence, the respondent would have been vicariously liable.
148There were, of course, many other issues at trial that travelled well beyond the principal matter that emerged on the hearing of the appeal. The trial, as it transpired, was a most complicated affair. There is little point in my identifying all of these features. Principal among them, however, was the complication that arose from the fact that there were, as I have mentioned, two exercises alleged to have been involved in the breach of duty of care. The combination of a number of factors resulted in the claim being made initially that the appellant had been required to do a two hundred kilogram leg press, when in fact, as it later transpired, it was two hundred pounds. This considerable misconception resulted in an error of approach which ran through many aspects of the appellant's case, including the reports prepared by his experts. In the end, it became a matter of no real importance, in the sense that the leg press exercise was found not to have been causative of the injury in any way at all. The second major confusion in the trial was the confusion as to whether the movement involved in the medicine ball exercise was a crunch rather than a sit-up. This distinction had not perhaps been raised squarely with the appellant during his evidence. This confusion in nomenclature led to difficulties in the identification and resolution of the issues. In the end, the primary judge concluded that the medicine ball exercise had been conducted with a crunch rather than a sit-up, and, in that regard, she did not accept the reliability of the appellant's evidence.
149I will not pause to list all of the problems that arose throughout the trial. It is sufficient to say that the primary judge was faced with a considerable number of difficulties in evaluating the reliability and, for that matter, the substance of much of the evidence before her. This flowed through to an evaluation of the expert evidence, both from Mr Tzarimas and the doctors, especially those called on the appellant's behalf.
150There were three areas of evidence which the primary judge addressed in her examination of the breach of duty question in relation to the medicine ball exercise. There was first the evidence from Mr Tzarimas, the expert called on the appellant's behalf. This, of course, had to be examined in the light of the appellant's evidence. Secondly, there was the evidence of the doctors, and finally there was the evidence of Mr Draffin.
151On the hearing of the appeal, Mr Jackson QC submitted that the evidence of the doctors could and should have been relied on by the primary judge to satisfy her that the medicine ball exercise was a dangerous exercise, requiring a finding of breach of duty. In my opinion, that argument was not available to the appellant upon appeal. The trial was plainly conducted on the basis that the medical reports were to be used only on the basis of causation. The four reports by Mr Tzarimas represented the expert evidence on liability. This court must be particularly astute not to permit parties to depart from the manner in which the case has been presented below ( Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Coulton v Holcombe (1986) 162 CLR 1; Metwally [No 2] v University of Wollongong (1985) 60 ALR 68). The plaintiff's case on breach of duty could only succeed having regard to the evidence of the plaintiff, Mr Tzarimas and Mr Draffin.
152This brings me to the primary judge's treatment of Mr Tzarimas. Her Honour's analysis of Mr Tzarimas' evidence was extremely comprehensive. More than fifty paragraphs of a fifty-five page judgment were devoted to matters involved in the rejection of Mr Tzarimas as a reliable and credible expert. First, there was the confusion about the facts relating to the events at the gymnasium on the day of the injury. Mr Tzarimas had relied on a history derived from his oral conversations with the appellant, and the appellant simply subsequently adopted this history, with some minor qualifications. This unorthodox approach created significant problems for comprehending the basis of Mr Tzarimas' conclusions. It created problems indeed for understanding the nature of the appellant's case. Secondly, the primary judge noted that Mr Tzarimas' instructions from the appellant (as he repeated them in his reports) were at variance, often in significant ways, with the appellant's evidence on the same issues (for example, Red Book 39, where instances are given). Thirdly, given the absence of precise instructions in a number of areas, the primary judge was simply unable, on a number of important matters, to understand how Mr Tzarimas reached the conclusions he did. This led to difficulties in examining those conclusions so as to test their validity. Fourthly, the major error Mr Tzarimas made, in relation to the leg press exercise, permeated to a very considerable degree the reliability of the later conclusions he reached. He had, it seems, been labouring under three misapprehensions. Two of them related to the leg press, namely, the weight involved in the exercise, and the proposition that the weight exercise had been done prior to the cardio session on 5 th April 2008. The third misconception was that the appellant had done three sets of ten repetitions in respect of the abdominal medicine ball exercises. Her Honour pointed out that she was simply unable to evaluate the reasoning by which Tzarimas had been able to conclude that Mr Draffin had ignored fundamental principles in relation to setting the exercises.
153Fifthly, there was Mr Tzarimas' assumption that Mr Draffin had set a number of the exercises at a very high level of intensity, when the appellant's evidence made it clear that this was not so. Moreover, there was the fact that none of the misapprehensions, when corrected, led to Mr Tzarimas toning down his opinions, or revising them in any substantial way. It can sometimes be regarded as a significant failure on the part of an expert if he maintains unreasonably an intransigent approach to the questions involved in the litigation, especially when, as an expert, he is required to show independent detachment and to make concessions when appropriate. So it was here. Finally, the primary judge concluded that Mr Tzarimas had assumed the role of Mr Wilson's advocate in the case. This was a trenchant criticism, and not one that was undertaken lightly by her Honour (Red, 51 at 122). Her Honour gave considerable attention to the reasons that led her to this conclusion.
154The major criticism directed at Mr Tzarimas at trial, quite apart from his lack of detachment and his assumption of the role of an advocate, was that he had placed reliance on a number of scientific and training manuals for the opinions he expressed. His views, it was said, did not relate to the contemporary practices of gyms and health studios in Sydney. Mr Tzarimas nevertheless conceded in cross-examination that the medicine ball exercise, or variants of it, occurred in gymnasiums in the central business district of Sydney, although he insisted it was not a conventional fitness training exercise. In other words, he agreed that the exercise was being performed, but he maintained that it was not recommended within the National Fitness training package. He also accepted that there were other sources outside the training manuals upon which he had placed reliance, which may have allowed for the particular exercise.
155On the hearing of the appeal, Mr Jackson QC argued that her Honour did not mention, and therefore did not consider or reject, certain opinions expressed by Mr Tzarimas regarding the cautions that had to be taken before the medicine ball exercise was given to the appellant. It was on the basis of those opinions (Blue Book, 106-109) that Mr Tzarimas had concluded that the medicine ball exercise was inappropriate.
156In my opinion, it is a less than fair reading of her Honour's reasons to suggest that, merely because she failed to refer specifically to one brief section in Mr Tzarimas' report, that she must be taken to have accepted it, or that the failure to mention it means that her overall finding concerning the expert evidence was flawed. A fair reading of her Honour's decision shows that she did, in general terms, reject the expert for not adequately exposing and justifying the whole of his reasoning. There is no basis for restricting that finding to any particular segment of Mr Tzarimas' reasoning process. Her Honour saw the witness giving evidence. She listened to his responses to cross-examination and indeed to a number of questions she herself had asked. The primary judge was in a perfect position to assess whether, and to what extent, weight should be given to the expert's evidence. She was in a perfect position to determine whether she could rely on that evidence or not. She gave considered reasons as to why she thought Mr Tzarimas' evidence was unhelpful on the central issue, namely whether there had been a breach of duty by the personal trainer. It should not be overlooked that there were many other categories of negligence which were vehemently propounded by Mr Tzarimas (eg: lack of proper training and supervision of personal trainer), but these too were all rejected. There was no satisfactory basis, the primary judge said, for those opinions as well.
157Tobias JA, in his draft reasons, suggests that a fair reading of Mr Tzarimas' evidence revealed an expert witness who was "indeed an expert in his subject" and who gave his evidence "in a forthright and honest manner". This observation, it seems to me, is, with respect, apt to fall foul of the well-known constraints on the extent of permissible appellate intervention. I shall return to that issue shortly. Before doing so, it is necessary to briefly touch again on the nature and extent of the criticism levelled by the primary judge at the reliability of Mr Tzarimas' evidence.
158The primary judge, as I have said, was highly critical of Mr Tzarimas as an expert. Her careful and comprehensive analysis occupied, as I have noted, nearly one-third of her lengthy reasons. The analysis included criticism of the method of recording the information given to him by the appellant, his failure in many instances to state the factual assumptions on which he based his conclusions, and his lack of explanation for those conclusions. It included criticism of a number of factual assumptions where they were actually stated in the reports, but were later shown to be at variance with the evidence given by the appellant upon those very matters. The analysis was critical of his lack of detachment and independence, and of his assumption of the role of an advocate, both in his written and oral evidence. The specific example of this that was given by her Honour - and there were, no doubt, others available to her - was a particularly telling one. This was that Mr Tzarimas described that he, on his own initiative, had gone to the manufacturer of the leg press machine "to support my case" (Red Book, 52 at H - M). No clearer example could be given of an expert stepping outside the proper confines of his professional detachment to argue a case.
159There were many other areas of criticism. It is not necessary to repeat them all. Significantly, however, this critical analysis was made throughout the lengthy section of the primary judge's reasons, where her Honour dealt with "breaches of duty alleged by Mr Wilson" (Red Book, 43 at Z). Her Honour said:-
The allegations fall into four broad categories: the systems under which Mr Wilson's training plan was established (including the allocation of Mr Draffin as his trainer); general allegations in relation to the exercise programme delivered; specific allegations in relation to the leg press exercise and specific allegations in relation to the medicine ball exercise.
160In my opinion, it cannot be said that the primary judge's criticisms of Mr Tzarimas were isolated from, or had nothing to do with, the opinions the expert expressed in relation to the medicine ball exercise. A fair reading of her Honour's decision, with respect, is, in my opinion, inimical to any suggestion that her criticisms were confined to the expert's views about the respondent's risk management procedures and professional responsibilities. Nor were they confined to the allegations concerning the leg press exercise, to the exclusion of a full consideration of the issue concerning the cause of the injury, namely the medicine ball exercise. Indeed, her Honour said (Red Book, 57 at K - M):-
Assuming that the exercise Mr Wilson was requested to do was a crunch, Mr Tzarimas' evidence has not satisfied me that it was unreasonable, by reference to the normative standard of care in a personal training studio, to introduce the additional challenge of a medicine ball and the side-to-side movement.
And again (Red Book, 57 at R - T) (postulating a sit-up, as opposed to a crunch):-
I do not accept Mr Tzarimas' evidence on this issue reflects a standard of care of a reasonable personal trainer. His conclusion rested on the fact that, following a review of standards in the fitness training industry conducted in 2000, sit-ups were not specifically included in the range of recommended abdominal exercises. I do not think that this is a sufficient foundation for a conclusion that it is negligent to ask a person like Mr Wilson to try to do one at all.
It is clear that each of these statements were directed expressly to the medicine ball exercise.
161Finally, it might be noted that (Red Book 59 at K - M) the primary judge, referring to the medicine ball exercise, said:-
Mr Tzarimas' opinion on that issue is, in my view, a counsel of perfection that does not reflect the normative standard of care imposed on personal trainers in that context.
162Tobias JA considers that the primary judge rejected the evidence of Mr Tzarimas upon the basis that he had not satisfied her that it was unreasonable, by reference to the normative standard of care in a personal training studio, to introduce the additional challenge of a medical ball and the side-to-side movement. Tobias JA referred to her Honour's statement, that Mr Tzarimas' opinion on the issue was "a counsel of perfection". Tobias JA disagreed with this for several reasons. First, that her Honour's rejection of the appellant's evidence, to the extent that she did, was based upon an unreliability finding. Secondly, her Honour's rejection of Mr Tzarimas' evidence was not a credibility finding, but more in the nature of a reliability finding ( Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). Thirdly, Tobias JA considered that Mr Tzarimas' evidence was unchallenged and, further, it was no more than the expression of a strongly held opinion. Tobias JA thought that a number of the responses of the expert witness might properly be traced back to his frustration at the nature and extent of his cross-examination.
163In relation to each of these matters, I wish to make the following comments. First, while it is true that Mr Tzarimas' opinions expressed at Blue Book, 108 - 109 (in his report of 27 th November 2008) were not directly challenged, there was clearly a challenge to the nature of the exercise the appellant had performed with the medicine ball. Certainly, there were challenges to Mr Tzarimas' understanding of the actual nature of the exercises performed by the appellant. That was critical to the opinions the expert expressed. Brought into issue by the cross-examination were, amongst others, the following matters: whether the exercise was properly described as a crunch or a sit-up; whether the medicine ball was thrown to the appellant or simply held by him; whether the medicine ball was the two kilogram ball or the 5.4 kilogram ball; whether the number of sets and their repetitions was as recorded in Mr Tzarimas' report, or at the lower level suggested by the appellant; whether the medicine ball was moved to the side, and if so, to what extent; whether the medicine ball was placed on the floor with each twist; whether the twist was correctly described in that way, or whether it was more aptly described as a crunch to the left and then to the right. The appellant's version was ultimately accepted on a number of these matters but they were certainly in dispute. Each of these contested issues, in turn, had a capacity to impact on the relevant opinions expressed by Mr Tzarimas.
164Secondly, I do not consider that the findings of the trial judge in relation to her rejection of Mr Tzarimas' evidence should be disturbed for the other reasons referred to by Tobias JA. In Fox v Percy , it was held by Gleeson CJ, Gummow and Kirby JJ that a finding of fact by a trial judge, based on the credibility of the witness, may only be set aside upon appeal where "incontrovertible facts or uncontested testimony demonstrate that the judge's conclusion was erroneous", or where it is concluded that "the decision of the trial judge was glaringly improbable or contrary to compelling inferences in the case". McHugh J held that an appellate court is entitled to set aside a trial judge's finding based expressly or inferentially on demeanour, if there is something that points decisively, and not merely persuasively, to error on the part of the judge in acting on his or her impressions of a witness or witnesses.
165In his decision, at 139-140, McHugh J referred to "a valuable passage" in the judgment of Isaacs J in Dearman v Dearman (1908) 7 CLR 549:-
So that the position is clearly laid down by the very highest authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance. But there are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit as it used to be in the old Court of Chancery, the appellate Court is in as good a position as the primary Judge to say what ought to have been the decision; but where viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal . The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal. So far as their judgment may depend upon these circumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal. Now it may be that in some cases the effect of what I call the unrecorded material is very small, indeed insignificant, and utterly outweighed by other circumstances. It may be, on the other hand, that it guides, and necessarily guides, the tribunal to the proper conclusion. If that is the case, as I have said before , the Court of Appeal cannot say that the conclusion is wrong without disregarding the material which it knows must have been existent before the tribunal below , and is necessary to a just conclusion."
166It is true that the rejection of aspects of the appellant's case was in the nature of a finding based on unreliability rather than credibility, but it was nevertheless based on demeanour. It is also true that the rejection of Mr Tzarimas' evidence was more in the nature of a finding based on unreliability rather than on credibility. But that is to be expected in relation to the rejection of an expert witness. Such a witness does not attest to the facts of a case, as does a participant, bystander or victim, in, for example, accident litigation. Where a trial judge has made a careful appraisal of the evidence of an expert, as had happened here, and forms a reasoned and concluded opinion that the evidence cannot be relied upon, the principles in Fox v Percy are plainly called into play. This is especially so where, as here, the expert has given extensive oral evidence, and has been tested in cross-examination before the primary judge. In particular, it is not appropriate, in my view, for this court on appeal to rely on its impressions, taken from a reading of the transcript, that the witness "gave his evidence in a forthright and honest manner". Nor is it appropriate to speculate as to why the witness gave evidence in the way he did. This court has not had the benefit of seeing and hearing the evidence of the witness and must, within the confines of the reasoning in Fox v Percy , yield to the findings of the trial judge, based as they were on a close appraisal of the witness. These principles apply to the evidence of an expert in the same way they apply to the evidence of a lay person: Dobler v Halverson and Others; Dobler v Halverson (By His Tutor Kenneth Halverson ) [2007] NSWCA 335; 70 NSWLR 151 per Giles JA at [49] - [52] (with whom Ipp and Basten JJA agreed).
167Indeed, it is often the case that an expert witness who has assumed the role of an advocate, and who has apparently stepped outside the confines of his proper role in the litigation, may well be inclined to give his evidence "in a forthright manner". Whether he is honestly and reliably doing so will then, ordinarily, be a matter for the trial judge. In the present matter, there were no "incontrovertible facts or uncontested testimony" that could demonstrate that her Honour was wrong in taking the view that she did of Mr Tzarimas and his evidence.
168Insofar as Mr Tzarimas had conducted a gymnasium himself (until 2004), this was not a matter he relied on in any of his reports or in his evidence-in-chief to justify his opinions. It was brought out in cross-examination to show he had no (or very little) contemporary understanding of the usual practices in CBD training centres in relation to the exercises he criticised.
169The critical evidence that remained for consideration at trial on the breach issue was the evidence of Mr Draffin. Tobias JA has conducted a thorough and compelling analysis of the evidence of Mr Draffin. Following upon this examination, Tobias JA concluded that the appellant had established that a reasonably competent professional fitness trainer in the position of Mr Draffin would not have engaged the appellant in the medicine ball exercise. Tobias JA also concluded that precautions that such a reasonable personal trainer might have taken would have been to desist from requiring the appellant to undertake the medicine ball exercise, unless and until he had satisfied himself that the appellant was sufficiently advanced in terms of the strength of his abdominal muscles as to have the capacity to undertake the exercise without risk of harm to his back. These findings, if accepted, must flow through vicariously as against the respondent.
170Upon careful consideration of Tobias JA's analysis and reasoning, I have concluded that I should agree with his conclusions in relation to Mr Draffin's evidence. It may be accepted that Mr Draffin, though no doubt well meaning, was not an experienced trainer. His intention was no doubt to push the appellant reasonably hard, in an endeavour to strengthen his abdominal muscles more rapidly. Mr Draffin's evidence shows, however, that while he realised that the full import of the medicine ball exercise, with its additions, might be too much for an inexperienced client, he nonetheless encouraged the appellant to perform it. On the findings made by the primary judge, the exercise was carried out with the heavier ball, and it was thrown to the appellant to catch. He was required to catch the ball with his spine off the ground, and then rotate from side-to-side, holding the ball as he did so. The respondent argued that the setting of this exercise was in response to a general request from the appellant that he be worked hard during his training programme. There is, however, no evidence to suggest that the appellant made that specific request in relation to this particular exercise. Mr Draffin should have realised that more care should have been taken, and caution exercised, in acclimatising the appellant to the basic medicine ball exercise before considering whether additions should be made to it. There is no doubt, as the primary judge found, the medicine ball exercise, with its variations, was the cause of the injury.
171It must follow that the appellant is entitled to succeed on this basis and, for that reason, but no other, I am prepared to agree with the orders proposed by his Honour. For my part, I would prefer to express no opinion on the matters raised by Tobias JA in relation to the applicability and interpretation of s 5B(2)(d) of the Civil Liability Act 2002 . That matter was not fully argued before us and, in any event, the particular matters tentatively reflected upon by the primary judge do not appear to have played any major part in her ultimate reasoning and conclusion. In my opinion, the issue is a difficult one, and should be left for resolution in an appropriate case, where full argument and attention is given to the question.