A Dangerous Exercise in Breach of Duty of Care by TurksLegal

A Dangerous Exercise in Breach of Duty of Care By Roger Walter | March 2011 Area of Expertise | General Insurance

Summary On 24 March 2011, the NSW Court of Appeal handed down its decision in Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest). The case raises three matters of interest: (a) establishing liability in negligence in the context of supervised physical exercise; (b) the admission of some of the opinion of an expert in circumstances involving a finding that his evidence is unreliable; (c) the significance of ‘social utility’ as one of the considerations listed in s5B(2) of the Civil Liability Act 2002.

Who Does This Impact? Those interested in negligence actions and physical exercise.

What Action Should Be Taken? The lessons of this case might be considered by some to be more practical than legal. However, the outcome and the legal process, analysis and reasoning are also of general interest.

Introduction On 24 March 2011, the NSW Court of Appeal handed down its decision in Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest)1. The case raises three matters of interest: (a) establishing liability in negligence in the context of supervised physical exercise; (b) the admission of some of the opinion of an expert in circumstances involving a finding that his evidence is unreliable; (c) the significance of ‘social utility’ as one of the considerations listed in s5B(2) of the Civil Liability Act 2002. Mr. Wilson, a middle-aged barrister, brought an action for damages in negligence in respect of an injury to the L4/5 disc in his lumbar spine, an injury he suffered while exercising under the instruction of a qualified but inexperienced trainer employed by the defendant company and while engaged in an exercise program it had designed for him and supervised at its gym. The issue of liability was determined separately from, and in advance of, the question of damages. At trial, a verdict was entered for the defendant company when the judge found that there had been no breach of duty of care by the defendant or its employee trainer. The appeal was allowed on the basis that the trainer was negligent. The case was then remitted for a hearing on damages. The trial judge found that the injury was caused by the pressure on the lumbar spine produced by a particular exercise. The activity involved catching and returning a 5.4kg medicine ball while performing an abdominal crunch that involved a degree of twisting as the lumbar spine was flexed. The trial judge’s finding on breach of duty was therefore the critical issue in her Honour’s ruling against Mr. Wilson on the issue of negligence.

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A Dangerous Exercise in Breach of Duty of Care by Roger Walter

In determining the breach of duty issue, the trial judge found that the evidence of the expert on liability called in support of Mr. Wilson’s case was unreliable for several reasons, which most notably included that the judge gained the impression that he had taken on the role of advocate, thus compromising the level of independence required of an expert witness.

Breach of Duty At trial, the case was run on the basis that the medical evidence was to be considered only in relation to the issue of causation. This approach was observed by the Court of Appeal and no deviation from it was permitted in the appeal; this was in accordance with well-established authority. So both at trial and on appeal, the medical evidence did not inform the Court in any direct way in relation to the question of breach of duty – the material question here being in relation to the conduct of the trainer, which was whether it fell below the standard of a reasonable personal trainer. Tobias JA summarised the evidence of the trainer before concluding in relation to breach of duty and that evidence: 105 In my opinion, therefore, the primary judge’s process of fact finding was flawed as a consequence of her failure to examine and factor into her findings the evidence of [the trainer] which I have summarised in the preceding paragraph and which I regard as not only materially relevant to, but also determinative of, the issue of whether [he] departed from the standard of care required of a reasonably competent professional personal fitness trainer: cf Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] per Hayne J; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [30] per Ipp JA (with whom Mason P and myself agreed). 106 [the trainer’s] evidence established that the medicine ball exercise was not only a variation or exercise not referred to in the written material of the Australian Institute of Fitness (from whom [he] had gained his qualifications) but also was one he had introduced merely because he had seen other trainers utilising it but with no knowledge, so far as his evidence went, as to the ability or capacity of the particular clients of those trainers to cope with the added challenge. His evidence went no further than establishing that as he had seen it being done by others, he ‘just thought it would be okay to do’. This is hardly the standard of care expected of a reasonably competent professional personal fitness trainer in what was clearly a field of endeavour calling for the application of appropriate expertise.

The Rejection of Expert Evidence Issue The appeal was decided in favour of Mr Wilson without reliance being placed upon the evidence of the expert rejected by the trial judge. Both Beazley JA and Tobias JA did, however, seek to distinguish the case from the sort of appellate interference in a trial judge’s assessment of a witness that was ruled impermissible in Fox v Percy2. The area is a difficult one which cannot be explored satisfactorily in a brief case report. It is sufficient to note here that some emphasis was placed on the fact that the trial judge did not question the credibility of the expert, as opposed to his reliability. Not an unusual circumstance, as Wheally JA remarked in his reasons.

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A Dangerous Exercise in Breach of Duty of Care by Roger Walter

The observations made by Beazley JA and Tobias JA suggested that it is a question of degree as to whether the reliability of an expert in relation to his evidence as a whole should influence a court’s decision to reject his evidence on a particular point or not. In concluding her remarks on the issue, Beazley JA said: I would only intimate that during the course of the appeal, it seemed to me that there were aspects of [the expert’s] evidence that should have been accepted, notwithstanding her Honour’s demeanor finding. The evidence to which I refer was his evidence relating to [the trainer’s] incorporation of the medicine ball exercise into the appellant’s exercise program. And this extract from the case’s headnote provides a summary of the views of Tobias JA on this issue: The primary judge’s rejection of the whole of [the expert’s] evidence was not based on any credibility finding but on an unreliability finding. [The expert’s] evidence should be viewed in the context that it was unchallenged and that what the primary judge considered was a lack of independence and advocacy was the expression of opinions strongly held, and although his evidence exhibited a degree of arrogance and frustration, this was in no small measure due to the nature and extent of his cross-examination. The primary judge’s grounds for rejecting the totality of [the expert’s] evidence were flawed and she should have accepted that part which related to the medicine ball exercise being undertaken by the appellant at the instigation of [the trainer]: [64]-[68]. Wheally JA took a different view and observed: A fair reading of those reasons showed that in general terms she rejected 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 [the expert’s] reasoning process.

The s5B(2) Issue of Social Utility Subsection 5B(2) of the Civil Liability Act 2002 provides: (2)

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) (b) (c) (d)

the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, the social utility of the activity that creates the risk of harm.

This was not a determinative issue at trial or on appeal and only Tobias JA saw fit to take it up in the Court of Appeal. He thought that it was misconceived by the trial judge who included this paragraph in her judgment: The legislation appears to assume that it might be reasonable to take fewer precautions against the risk of harm created by an activity of high social utility. I accept that physical exercise is such an activity.

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A Dangerous Exercise in Breach of Duty of Care by Roger Walter

Tobias JA observed in relation to this: 129 In my respectful opinion, the Act makes no such assumption. Although it might be said that as a general proposition physical activity is of social utility, what the subsection requires to be taken into consideration is the social utility of ‘the activity that creates the risk of harm’. In the present case that activity was the medicine ball exercise. Of itself it had no relevant social utility let alone a high social utility - quite the contrary,…

Implications

This case is illustrative of the difficulties that can be encountered in applying the law of negligence to circumstances arising from the more modern social and recreational activities we see across our society today. Personal training outside of professional sport was most uncommon until the closing stages of the twentieth Century. The case also illustrates the sorts of difficulties that can be encountered in adducing expert evidence, even if there is no expert evidence from the other party to contradict it. The social utility of the activity that creates the risk of harm, as provided for in s5B(2) of the Civil Liability Act 2002 was touched upon by the Court of Appeal in this case and attention was drawn by Tobias JA to the fact that the level of generality at which one views the activity in question (e.g. physical exercise in general as opposed to the dangerous exercise at hand) is critical to any conclusion drawn about its utility and the core question of risk.

End notes 1 2

[2011] NSWCA 63 [2003] HCA 22; (2003) 214 CLR 118

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A Dangerous Exercise in Breach of Duty of Care by Roger Walter

For more information, please contact: Roger Walter Partner T: 02 8257 5736 roger.walter@turkslegal.com.au

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