Cornwall v Jenkins as trustee for the iSpin Family Trust - [2019] ACTSC 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cornwall v Jenkins as trustee for the iSpin Family Trust
Citation:	[2019] ACTSC 34
Hearing Dates:	10-14, 17 and 19 December 2018
DecisionDate:	21 February 2019
Before:	Mossop J
Decision:	See [227]
Catchwords:	TORTS – NEGLIGENCE – Breach of duty – injury sustained during aerial sling exercise class – various breaches alleged – evidence does not establish mechanism by which plaintiff fell from the sling – use of mats – use of spotter – breach of duty not established on the evidence – turns on own facts TORTS – NEGLIGENCE – Causation – use of crash mats – causation not established if using one layer of crash mats – no determination as to causation when using more than one layer of crash mats – use of spotter – limitations on the evidence precludes finding that the lack of a spotter was a necessary condition of the harm – turns on own facts
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 43(1)(a), 43(1)(b), 43(2)(a), 43(2)(b), 43(2)(c), 43(2)(d), 45, 45(1)(a), 100 Court Procedures Rules2006 (ACT)
Cases Cited:	Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Parties:	Carrie-Anne Cornwall (Plaintiff) Sophie Jenkins as Trustee for the iSpin Family Trust (Defendant)
Representation:	Counsel D Richards (Plaintiff) R Cavanagh SC (Defendant)
Solicitors Maliganis Edwards Johnson (Plaintiff) Colin Biggers & Paisley (Defendant)
File Number:	SC 13 of 2017

MOSSOP J:

Introduction

The plaintiff, Carrie-Anne Cornwall, has claimed damages arising from injuries suffered while she was participating in an “aerial sling” exercise class. This is a fitness class where participants take part in exercises using a fabric sling which is attached to the ceiling. While the plaintiff was performing a particular manoeuvre she fell from the sling and broke both wrists. She has claimed that the defendant, Sophie Jenkins as Trustee for the iSpin Family Trust, who ran the fitness class and occupies the premises, was negligent. The defendant has denied negligence and asserted, if negligence is established, that the plaintiff was contributorily negligent. The extent of damages is also, to a significant extent, in issue.

The plaintiff has not established that the conduct of the defendant involved any breach of duty. As a consequence, there must be judgment in favour of the defendant. Had breach of duty been established, any finding about causation would have been very much dependent upon the nature of any breach of duty that existed. In those circumstances, although the plaintiff faced considerable difficulties in establishing causation, it was not appropriate to finally determine the question of causation. In case I am wrong in my conclusions about breach of duty and causation was established, I have undertaken a contingent assessment of the damages that would have been due to the plaintiff.

The accident

The accident occurred on 11 February 2014 towards the end of a sling class. The plaintiff fell from the sling she was using to the ground. It can be inferred that she fell forward rather than backward because she suffered two broken wrists and no injury to the back side of her body. The circumstances surrounding her accident were contested.

Evidence of the plaintiff

At the time of trial the plaintiff was 27 years old. The accident occurred on 11 February 2014 when she was 23 years old. From 2012 she had been employed by Airservices Australia. She first came across the iSpin fitness studio via an advertisement on Facebook or Groupon. She signed up for a beginners’ level pole dancing class on the internet. The pole dancing classes were categorised by competence levels, there being beginners, bridging, intermediate, advanced and advanced tricks classes. They were conducted at premises occupied by the business, iSpin, in Phillip. Those premises had three rooms: a main room in which the 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 slings which hung from the ceiling and on which other exercise manoeuvres could be performed.

The plaintiff had done sling classes approximately once a week for about a year. They would involve doing warm-up exercises and stretches using a yoga mat. The yoga mats were supplied by the business and at the time were coloured purple. They had a hole cut out of the centre of them with a slit from the hole to one of the long edges so that, when used in a pole class, they could be put around the base of one of the poles. Sometimes the stretches at the beginning of the class also involved use of the sling. The class would then move on and introduce the students to particular manoeuvres using the sling which they would practice. These manoeuvres were referred to in the evidence as moves or tricks. I will refer to them as moves.

The plaintiff’s evidence was that nobody had ever offered to provide her with, or said that she should use, a mat other than one of the purple yoga mats.

The plaintiff had never seen anyone use a “spotter” to assist with the manoeuvres using the sling, although she had observed spotters being used on a small number of occasions in the pole class.

Prior to the incident, the plaintiff had never had a fall herself and had never seen anybody else fall from the sling.

Unlike the pole classes, the sling classes were not streamed based on the level of competence or experience. There was a single class in which students with a range of experience participated.

The manner in which new moves using the sling were taught would be that the teacher of that class would demonstrate the move on a couple of occasions, giving tips and instructions as to how it should be done. The teacher would either be on the elevated stage area or at floor level like the other members of the class.

The plaintiff said that there was a time frame in which students were expected to perform a new manoeuvre and that she felt some pressure to perform the manoeuvre as she did not want to hold up the class.

She knew some of the other members of the class and she knew some of them sufficiently well to socialise with them outside the context of the class.

On 11 February 2014, the plaintiff attended the premises after work. She picked up a friend of hers, Anna Loeschnauer, on the way. When she arrived she changed into her class clothes being a black long-sleeved shirt and black leggings. She then waited for the class to commence and chatted to other members of the class who were also waiting. At the commencement of the class the instructor, Carla Weijers, told the students to get one of the mats and put them under an anchor point.

The plaintiff was up the front near the instructor. The instructor was in front of her and to the left. Her friend, Ms Loeschnauer, was on her right. There was a five minute warm‑up, followed by five to 10 minutes of stretches. Ms Weijers then started demonstrating particular moves using the slings. The plaintiff could not remember the other moves that were carried out prior to the accident.

She described that for the purposes of the “pancake” move she was required to climb to the top of the sling. She hadn’t been to the top of the sling for any move prior to that.

Her evidence in chief was as follows:

Can you recall whether you were asked, requested, advised, whatever it happened to be to do a move that required you to be towards the top of the sling?---Yes.
Which move was that?---We call it the pancake move.
You’re now referring to the move where you were injured?---That’s correct.
Prior to that move where you were injured, can you recall being asked to do another move that required you to be at the top of the sling?---No, no.

The plaintiff was then shown a video (which became part of Exhibit 4) of a person doing a move on “silks” (as opposed to a sling). It showed a person doing a move described in the video as “hip lock from a climb”. The transcript continued:

You have been referring to this as a pancake move?---Correct.
If someone suggests that it’s a hip lock move, what would you say about that?---I understand the similarities but the hip lock, you don’t let go of your hands and it is your holding on at one side and then rocking in so you never let go of your hands with a hip lock.
The move that you were injured on 11 February ‘14 when there was a demonstration from Carla as to how to do it, did she let go of her hands?---She told us to let go.

The plaintiff said that prior to inverting her body she had gripped the single carabiner at the top of the sling. The plaintiff’s evidence was that some time after inverting her body she fell to the ground. The plaintiff was not certain of the mechanism of her accident. She said that it may have been when she was inverting or it may have been as she was trying to get out of the position that she fell.

She said that there was no conversation about having anyone “spotting” for her and she did not observe anyone spotting on that day. That day was the first time she had been shown the “pancake” manoeuvre.

She could not say whether she had been knocked unconscious, although she did feel like she was waking up after the incident. Ms Weijers got her an ice pack. She felt really hot and numb afterwards. She couldn’t open the bathroom door and that’s when she realised she had something wrong with her right hand. She went to the bathroom and threw up. She then sat down the front of the class with an ice pack. A lady from the class looked at her right wrist and suggested that she go to hospital. The plaintiff said that she had pain in her head and jaw, her arms were sore, her right shoulder was sore, her knees and hip were sore, and that, prior to vomiting, she had been nauseous.

In cross-examination there was the following exchange about the mechanism of the accident:

So you don't recall how you fell?---I don't.
You don't recall what caused you to fall?---No, I - I think I slipped.
Well, you know you could have either slipped out of the material as you're in that position, or you could have got yourself out of the material and been - had your foot on the sling and - - ‑?---No.
- - - might have missed it. You just don't know any of - whether any of those things occurred?---No, I believe I was - I had gotten into the move and was attempting to get back up and couldn't. That's what I believe happened.
But that's your belief. But you've already given evidence on a number of occasions you don't recall what happened after being in that croissant position, haven't you?---Well, once I had fallen I hit my head.
Yes. But I just want to be - give you an opportunity, Ms Cornwall. You've said on a number of occasions, "I do not recall what happened after I found myself in that croissant position," haven't you?---I have - no, I don't think that's correct.
It's not? Okay, what's not correct about it?---Well, I think I have said that I believed that I tried to pull myself out of the move.
But that's just a guess on your part isn't it because you don't remember?‑‑‑Well, I think I - I think that's what happened. Yes, I think that. But I - like I said, I hit my head and I have issues around that.
How do you believe you tried to pull yourself up?---I don't recall.
Well, that's what I'm trying to suggest to you. On your own evidence you don't really recall once you found yourself in the croissant position?‑‑‑Yes, I don't really recall.

Some further evidence relevant to the reliability of the plaintiff’s recollection was given during the cross-examination of Julie Armour, the ergonomics and human factors expert engaged by the solicitors for the plaintiff. She had attended a site visit on 11 May 2017 with the plaintiff, Ms Loeschnauer and the plaintiff’s lawyers. She described that part of the challenge for her as an expert was that the plaintiff had difficulty describing exactly what had happened. The plaintiff did explain that she put her hands up onto the top of the sling but she was not able to tell Ms Armour what happened after she put her hand on the sling. It was only at some time after the site visit that Ms Armour was provided with a YouTube video and a video involving Ms Weijers. It was based upon those videos that Ms Armour produced her first report which is dated 22 February 2018.

The following points can be made about the plaintiff’s evidence.

(a)The plaintiff was not an impressive witness. She was clearly nervous during parts of her evidence and, almost at the end of her cross-examination, was physically ill in the witness box. It was difficult to determine the extent to which the manner of her giving evidence was contributed to by her nervousness or anxiety. There were occasions when she insisted that she could not understand the questions she was being asked in cross‑examination because counsel for the defendant was talking too fast. This denial of understanding was not particularly credible, although it is possible that it might be attributed to some aspect of her psychological condition.
(b)She described that the move involved holding the top carabiner which attached the sling apparatus to the fixing point in the ceiling. No other witness described that being involved in the move. The other witnesses described it as involving holding triangular eyelets at the top of each side of the sling, below the metal fixture which permitted the sling apparatus to rotate.
(c)She could not describe the mechanism of the accident. Her evidence was that at some point after she let go of the top carabiner, she fell but she did not recall how it happened.
(d)Her inability to describe the move being performed at the time in May 2017 when she, along with her friend (Ms Loeschnauer) and her lawyers, attended the site visit is consistent with her not having any recollection, at that stage, of the details of the move being performed.
(e)The move being performed was described in the Statement of Claim filed in January 2017 as “an ‘aerial pancake’ sling manoeuvre” and only subsequently amended in the Amended Statement of Claim filed in January 2018 as “an ‘aerial pancake’ and/or ‘hiplock manoeuvre’”.
(f)In her evidence she insisted on a difference between a hip lock move and the “pancake” move that she was performing (see [17] above).
(g)Her description in her evidence of the move as a “pancake” was inconsistent with any term used in the defendant’s business. It was, however, consistent with the description given by her friend Ms Loeschnauer to a similar move shown being performed by Ms Loeschnauer in a photograph from her Instagram account which became Exhibit 12, a move that was different to the move that other evidence demonstrated was being taught on the day.

Anna Loeschnauer

Anna Loeschnauer was a friend of the plaintiff who had known her since a young age. She attended the sling class at which the plaintiff was injured. She estimated that prior to that date she had attended more than 20 sling classes. Her evidence was that students were instructed to get yoga mats, although in cross-examination she agreed that she had seen two crash mats in studio. Her evidence was that she only rarely saw someone spotting in a sling class. She couldn’t be sure if she had ever seen anyone apart from the instructor spotting. She had never seen an instructor using a spotter whilst demonstrating a move. She said she was never told that she should not take part in a move unless she had a spotter.

The move which she described as a “pancake” or a hip lock was one done at the top of the sling “and you weren’t locked in very well and you had to let go and kind of hope it caught you”. She said that Ms Weijers demonstrated the manoeuvre once. She agreed that after “diving down” the student’s body was in the shape of a croissant. She said that in demonstrating the move Ms Weijers “definitely let go”. She said that the instruction given by Ms Weijers was “grab a spotter if you need one. Otherwise if you feel confident, go for it”. She said that Ms Weijers then went to help a person and that everyone else started trying to attempt it. She said that the only person who had a spotter was the person that Ms Weijers was with.

Ms Loeschnauer’s evidence was given in a credible manner. Some doubt was cast upon the reliability of her evidence by her specific denial of having referred in a conversation with the defendant’s solicitor to the “pancake” move when the solicitor’s contemporaneous notes record her as describing it as such.

Emma McGavick

Emma McGavick was known at the time of the accident as Emma Di Bitonto. Her evidence was that for in excess of a year around 2014 she would do up to three pole classes and one sling class each week. Sometimes she was not able to do that and so attended only one or two classes per week.

She gave evidence at the very end of the trial as a result of an application by the plaintiff to reopen her case. She had known the plaintiff for a number of years prior to undertaking pole and sling classes because she knew her friend Ms Loeschnauer. It was because she knew Ms Loeschnauer and the plaintiff that she attended the classes where she did. She had been asked to give evidence the day that she was called to give evidence and, prior to the week before, had not known that the plaintiff had been injured.

Ms McGavick said that Ms Weijers did all of her sling classes except when Ms Weijers was on holidays or otherwise unavailable. She said that purple mats were used in the premises but not often for sling classes. She said that in sling classes she had never seen a person acting as a spotter. Although she could not name any other move that she had been taught, she did describe the hip lock as a move which involved having the sling somehow around the hips, then twisting and ending up with your hands off the sling. She said that there were a few different moves that were performed higher up on the sling, it being necessary to perform them higher up so that when inverted one’s head did not collide with the ground. She did say that spotters were used in the pole classes. She said that she was never told not to do a move or trick without a spotter and said that the teacher would only assist individuals if they asked. Otherwise the move was shown a couple of times and then the students would do it themselves.

She was not present in the class on the occasion when the plaintiff injured herself. Her description of the routine of each term was somewhat inaccurate. Her evidence was that there were eight to 12 classes per term and that there was about one new move taught every week. That was inconsistent with other evidence in the case. She also denied ever having seen any crash mats in the premises and did not recognise those mats shown in the photos in Exhibit 10. Other evidence indicated that the mats were present at the premises during the relevant period.

Her evidence was given in a matter-of-fact way. The manner of giving evidence was consistent with someone who had only recently been asked to recall events. She acknowledged the limitations on her recollection in a manner which reinforced her credibility. She appeared to me to be giving honest evidence.

Carla Weijers

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 are 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. At the time of the plaintiff’s fall, she said that she was spotting a student and that she could recall that two other students were waiting for her. As far as she was aware, the other students were still doing the beginner level moves. She didn’t see the plaintiff get into the sling or anything else that happened prior to the accident and she had her back to the plaintiff. She was not aware that the plaintiff was doing the move without a spotter. Ms Weijers heard a big thud and turned around. She observed that there was no spotter. She said, “the first words out of my mouth were, ‘That’s what happens when you don’t have a spotter’”. She said that before she realised that the plaintiff had suffered any serious injury. She observed that the plaintiff grabbed her left wrist and that it didn’t look like her right one. She got her an ice pack.

Ms Weijers said that she had never heard of a “pancake” move and that she had never used that term. She had heard of a move called a “pikelet” move. She described that move as being very different because it’s “from a back belt straddle or a harness manoeuvre, where the sling is actually securely around your hips”. She said that the move described as a pancake move in Ms Loeschnauer’s Instagram photograph (Exhibit 12) was, in fact, the pikelet move. She denied telling her students that they should let go with their hands. She said: “They were specifically told they had to hang on. It actually is a bit of pressure on your hands but that they have to hang on because you can’t let go in that move.” She denied giving instructions to take hold of the very top carabiner and said that she herself could not reach the top carabiner because she was not tall enough. She said that you would not be able to hold both hands on that carabiner. She said that the video in which she performed the hip lock move, which became part of Exhibit 4, was a demonstration of the demonstration that she had given on the day. She said that in her 12 years of teaching sling she had never, with the exception of the plaintiff, seen anyone fall off a sling.

Shortly after the incident occurred, Ms Weijers sent an email to the defendant. The most relevant portion of her contemporaneous email (sent at 8:01pm) provided:

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 over 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 incident happened at 7.07pm. Anna, Erica and Kirsty witnessed the fall.

At some time after the accident, Ms Weijers was asked to prepare a video showing the instructions and demonstration that she gave on the day of the accident. That video (“the Weijers video”) was provided to the plaintiff and was used for the purpose of instructing experts in the case. It showed her demonstrating a move which did not involve her releasing her hands from the top of the sling prior to the conclusion of the move. It also involved significant emphasis upon the instruction to use a spotter.

The manner in which Ms Weijers gave evidence did not cause me to have any doubt about the reliability of her evidence. It was significant that her evidence was generally consistent with her contemporaneous email.

Michelle Bray

Michelle Bray was an instructor at iSpin. Ms Bray prepared an email in December 2015 (after the defendant had been notified of the plaintiff’s claim) describing what she observed on the day of the accident. The relevant portion of the email provided:

I walked in to set up for my class at 6.15pm and saw Carrie C sitting at the back of the room injured. (After the incident) Her friend Anna was there. Carla Weijers was talking to her and Kristy Ballon (physio) was also with her. I was asked to get ice which I did. Carla ran back to the stage to keep teaching the class but did say “I told everyone not to do this version without a spotter.”

Ms Bray also gave oral evidence. She had been working as an instructor for four years prior to 2014. In cross-examination she disagreed with the proposition that she would teach students to do the level III hip lock move without a spotter. She agreed that she had seen somebody conduct a move up the top of the sling that involved releasing their hands even for a moment, although the circumstances in which she had seen this were not explored. She denied having seen anybody at the top of a hip lock type move letting go of their arms and putting themselves into “the shape of a croissant, with their arms out in a diving position”. She described the hip lock move as involving turning the hips and folding the chest towards the legs but maintaining the hands on the metal connectors at the top of the sling. She described a move that involved somebody releasing their hand from the sling as involving releasing one hand during the course of the pike manoeuvre. This evidence about a move involving the release of one hand was not elaborated upon. It was not identified as being part of the hip lock manoeuvre that was ever taught to students.

Ms Bray gave evidence by phone. Nothing in the manner in which she gave evidence suggested her evidence was not honest and reliable.

Sophie Jenkins

Sophie Jenkins was the defendant. She bought the business in November 2012 from the previous owner, Shannon Young. She said she had started as a student in 2009 and became an instructor in 2010 before buying the business. She became a certified instructor in 2013. She described the hip lock move as she taught it. She said that the hip lock was taught in term one and term five of every year.

She said that the hip lock move involved holding two triangular eyelets at the top of the sling (which were below the carabiner referred to by the plaintiff). She recommended the use of a spotter for the level III move in her classes. She was familiar with the pikelet move. She did not use the expression “pancake” to describe a move. She said that there was no pancake move in existence. She had never heard her instructors calling anything a pancake move. She described the difference between the pikelet and the hip lock—the pikelet coming from a harness position as opposed to the hip lock which did not. She denied ever telling her students to just let go in the middle of the hip lock move. She was responsible for devising the content of the program that was taught by her instructors. She had never seen anyone fall off a sling at her facility. She said that this was the one and only occasion when anyone had been injured when using a sling. She said she was not able to physically reach the top carabiner which the plaintiff described as grabbing. She said to try and hang on to that for any exercise would be excruciatingly painful.

The defendant was not an obviously impressive witness. She appeared on occasions somewhat too willing to retreat into answers to the effect of “I don’t know” or “I can’t recall”. Her denial of knowledge of a Vimeo video, which was identified by her solicitors as being a refresher video to which instructors would have reference, appeared to lack credibility. Further, the fact that the discovery initially provided was inadequate did not reflect well on her. Whilst she claimed that her solicitor had asked for documents and she had provided them, it is clear that both the level of disclosure in her first affidavit of documents was inadequate and that she had taken too little care in relation to what she swore. While I accept that there may have been some contribution to the inadequacies of disclosure by the extent of the advice that she received about what she was required to disclose, those inadequacies are still matters affecting her credibility.

Lesson plan

The lesson plan for term one of sling classes in 2014 was tendered. This plan outlines the sequence to be taught in each lesson during the six week term. It shows that each class followed a similar structure, in that, it involved a warmup, followed by stretching, followed by old moves which they have been taught in a previous week, followed by new moves, followed by a strength-related activity, followed by the teaching of a routine involving a sequence of moves strung together, followed by a cool-down activity. The moves were described by particular names. There was very limited evidence as to what other moves involved. Therefore, it was not possible to make an assessment of the level of difficulty of those moves when compared with the moves described in the alternative versions of what was required on the day of the accident given by witnesses.

Although Ms Weijers described a process whereby students of different levels of competence would do each move at a different level of difficulty, this was not reflected in the lesson plan except in two instances (“The Coffin into Dragonfly Invert” in week two, “Slingshot” in week five).

Insofar as there is a description of the “Hip Lock”, it was “Pull on handle in between legs and lift (can lean around in a pike position)”. This description might be consistent with what was shown in the video as being the beginner or intermediate level but did not match what was described by Ms Weijers or the plaintiff and Ms Loeschnauer as having occurred up the sling.

Class records

The records of the defendant show that the plaintiff enrolled in a term of sling classes in term one of 2013 at which the hip lock move was taught in week five. The records showed that she attended that class. Similarly, the records of the defendant show that in term five of 2013 the plaintiff had attended another term of sling where the hip lock move was taught in the fourth week of term. Once again, the records of the defendant indicate that she was present for that class. This evidence does not disclose whether she performed the level III version of the hip lock move during those classes. She had prior to the term in which the accident occurred, attended eight terms of sling classes, 10 terms of pole classes (sometimes involving more than one class per week), and some other workshops (Exhibit 23, tab 9).

These records are significant insofar as they demonstrate that the plaintiff was a student with a significant degree of experience with sling moves because of her participation in those earlier classes.

Expert evidence going to liability

Julie Armour

Julie Armour is a work health and safety, human factors and ergonomic risk consultant. She prepared three reports for the solicitors for the plaintiff. The first report was her substantive report which she prepared after a site inspection conducted at the premises. Her second report commented on the reports of Dr Andrew McIntosh and Ken Armanasco. The third report merely corrected an error in her first report.

Her first report described the premises and the equipment in some detail. It included a diagram prepared by the plaintiff of the manner in which she fell. Her report described general principles relating to the learning of sports skills involving heights. She was asked to comment upon two separate scenarios reflected in videos which were provided to her. First, was the hip lock move as demonstrated by Ms Weijers. Second was a video taken from YouTube (which had no connection to the defendant’s business) of a woman performing a move described as “hip lock from a climb” (“the silks video”). This move was performed using silks which involves two strands of fabric connected to the ceiling but which are not joined at the base. There was no evidence about whether there was any difference in the nature of the fabric when compared with the fabric of a sling. Ms Armour expressed opinions as to the measures that a reasonable person would have taken to avoid a risk of injury to students in a sling class performing those moves.

In relation to the Weijers video, she expressed the opinion that “it may have been appropriate to initially conduct this new skill from the ground in a modified manoeuvre, and with a more appropriate mat that covered the potential fall zone and would allow sufficient energy absorption if a fall occurred”. So far as that video was concerned, she said:

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.
…
If the Defendant had provided appropriate crashmat of adequate size for the full zone and allowed the plaintiff 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 plaintiff would [have] been significantly reduced in severity such that perhaps a soft tissue sprain or strain would have been a possible outcome.

Ms Armour gave oral evidence and was cross-examined. In cross-examination it emerged that at the inspection of the premises conducted in May 2017 at which both the plaintiff and Ms Loeschnauer were present, neither of them were able to describe the move being performed at the time of the accident other than to say that it involved the plaintiff having her hands at the top of the sling. The plaintiff was not able to say at what point in the move she fell nor where she came into contact with the floor. It was only subsequently that she was provided with the Weijers video and the silks video and asked to provide her opinion on the basis of those videos. She was not in a position to analyse whether the plaintiff had been previously taught the relevant enabling skills to be able to perform either of the moves shown in the videos because she herself did not have any particular experience with sling or pole dancing and had limited instructions about what the plaintiff had previously been taught. She disagreed with the proposition that it was sufficient for the teacher to have offered students a choice as to whether or not to use crash mats as opposed to the yoga mat. Although she initially described the mats as being 1800mm x 1800mm, her third report said that they were 1800mm x 800mm. On the basis of that size, she said that two mats placed next to each other would be “likely to cover [the] potential fall zone” beneath the sling.

Dr Andrew McIntosh

Dr Andrew McIntosh is a consultant in biomechanics and ergonomics. He is an Adjunct Professor or Associate Professor at three universities. He prepared a report for the solicitors for the defendant dated 20 June 2018. As part of the preparation of his report, he inspected the premises and examined the two videos showing different hip lock moves which were included in Exhibit 4. His report provides photographs of the site and equipment available as well as the different stages in the moves shown on the two videos. His conclusion was that the defendant had appropriate harm minimisation mechanisms in place and provided adequate instructions. He recognised that injuries suffered by the plaintiff were a foreseeable risk in the context of activities undertaken at the premises. He identified that crash mats were available. So far as the instructions to students were concerned, he identified that the instructor was a university trained teacher and was highly qualified to formulate and provide instructions and tailor those instructions to the goals and needs of an individual. He also identified that the structure and sequence of each class and weekly progression was suitable. He provided comments on the suitability of the crash mats which were available. He provided commentary on the report of Ms Armour. The differences of opinion between Ms Armour and himself were largely influenced by the factual assumptions to be made about what occurred.

He did not give oral evidence.

Ken Armanasco

Mr Armanasco is a consultant with experience in both workplace safety and gymnastics training. He too undertook an inspection of the site in April 2018. His report was based upon his instructions that the hip lock manoeuvre was taught as shown in the Weijers video. His report sets out a number of the different descriptions of the circumstances of the accident from different medical reports or documents. He identified three different possible scenarios for the mechanism of injury: The plaintiff was inverted with her hands off the sling and she fell headfirst to the floor; the plaintiff was tilting into the hip lock and lost grip of the carabiners and fell headfirst to the floor; the plaintiff was attempting to place her foot back into the sling when for some reason she lost her balance and fell forward.

In relation to program content, he expressed opinions in relation to safety of the activities and the appropriateness of the program content, the nature of supervision and instruction, staff competency and experience in the safety of facilities and equipment. Based on his instructions, he expressed the opinion that the defendant had discharged its obligations to the plaintiff to have appropriate hazard minimisation mechanisms and risk reduction strategies in place. The instructions that he relied upon were that the plaintiff had previously performed the skill with success in other classes, that she was physically capable of performing the skill, that she received clear instruction and demonstration of the skill from the instructor, that she was instructed to perform the skill at level III with a spotter, that the equipment was in good condition, that she had a potential spotter available if required, that matting was available to be used if required, that her instructor was appropriately trained and qualified in first aid, and that a warm‑up was provided.

He was asked whether the crash mats that were available were appropriate to minimise the risk of injury to the plaintiff. He said:

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 plaintiff. The potential effectiveness of matting is a complex matter and requires more investigation in order to give meaningful comment.

He provided detailed commentary upon the report of Ms Armour. In his conclusion he recorded that: “Given the uncertainty around the cause of the incident, more information is required to provide a definitive opinion regarding the possible breach of the duty of care owed to the plaintiff.”

He did not give oral evidence.

Findings

The issues in relation to which it is necessary to make findings are in relation to:

(a)the manoeuvre that was being undertaken;
(b)whether students were told to use a spotter; and
(c)the mechanics of the accident.

There were clearly very significant inconsistencies between the evidence of the witnesses. The most significant inconsistencies were whether the move involved releasing the hands, whether crash mats were available, and whether students were instructed to use a spotter.

In my view, the most reliable starting point for making findings of fact is the contemporaneous email sent by Ms Weijers to the defendant at 8:01pm on the evening of the incident. That email records that the incident happened at 7:07pm. That is consistent with the other evidence which indicates that it occurred more than halfway through a 55 minute class commencing at 6:30pm. (The reference in Ms Bray’s email (see [37] above) to arriving at 6:15pm must be an error instead of being at 7:15pm.) I consider the email to be reliable because it is contemporaneous and unaffected by deterioration of memory or knowledge of the existence of a claim arising out of the incident.

The email is significant because it sheds light on the nature of the move that students were instructed to perform as well as the instructions given to them. The description of the hip lock move describes it in a manner which is consistent with the evidence of Ms Weijers and the defendant, that is, because:

(a)it does not include any reference to movement involving letting go of the sling or any “fall” into a “croissant” position (or equivalent);

(b)it records that the students were told that if they were going to try the move they needed a spotter;
(c)it identifies the (principal) purpose of the spotter was to ensure that their legs went back into the sling afterwards; and
(d)it identifies that Ms Weijers was, in fact, spotting another student who was attempting the move (Delphine).

Notwithstanding that Ms Weijers did not see the incident occur, it recorded her contemporaneous conclusion that the cause of the accident was that the plaintiff proceeded without a spotter, her foot didn’t go back into the sling properly, she got caught and fell to the floor. I do not accept the submission made by the plaintiff that the email demonstrates that Ms Weijers actually saw the incident and hence had acquiesced in the plaintiff performing the move without a spotter. I accept Ms Weijers’ evidence that her back was turned and hence that the conclusion in the email as to what occurred was as a result of impressions gained from what she saw when she turned around after the fall.

On these issues, I consider that this contemporaneous record is likely to be more accurate than inconsistent oral evidence that was given at the hearing.

What was the move being undertaken?

The plaintiff and Ms Loeschnauer initially described the move being undertaken as a “pancake” move. I accept the evidence of Ms Weijers and the defendant that there is no move of that name. I also accept the evidence that there is, in fact, a move called a “pikelet” which involves moves consistent with those shown being performed by Ms Loeschnauer in a photograph from her Instagram page. That Instagram page describes the move as a “pancake”. The move shown on the Instagram page differs from the hip lock move described by Ms Weijers in that it involves a different arrangement of the sling around the performers hips and legs and also involves letting go of the hands so as to fall into a “croissant” or pike position. Ms McGavick gave evidence that the hip lock move involved releasing the hands so as to fall into a pike position. However, she was not present on the day in question, she had first been asked to recall what she had been taught at the studio immediately prior to giving evidence, and she had significant limitations upon her recollection of what she was taught in the classes that she attended.

The class records demonstrate that in fact the students were being taught a “hip lock” move. There was evidence from a YouTube video, unrelated to the defendant’s business, that demonstrated a hip lock move on silks (as opposed to a sling) which involved releasing one’s hands at the end of the move so as to fall into a pike position. However, Ms Weijers, the defendant and Ms Bray each gave evidence that the hip lock move performed at the defendant’s business did not involve releasing one’s hands.

Further, the uncontested evidence as to what was involved in the level I and level II versions of the move were that they involved only a very limited, ground-based activity and, in those circumstances, it is unlikely that the level III move involved not only the additional components of stepping into the sling, fully supporting the weight of the body and scissoring the legs so as to create the lock but also releasing one’s hands and falling into a pike position.

(It might have been open to the plaintiff to demonstrate that it was more likely than not that the hip lock move involved releasing hands and falling downward into a “croissant” position if evidence had been given demonstrating that similar moves had been taught either during that term or an equivalent stage in a previous term. Had there been other such moves that had been taught then it would increase the likelihood that a move involving release of the hands at a height was being taught at that stage of the term. However, the evidence did not establish that. While a number of different moves with exotic names were described in the lesson plan, those moves were not shown to involve any equivalent activity. There was oral evidence from the defendant and Ms Weijers that some of the moves involved releasing hands from the sling. However, those moves were not described in any detail so it is not possible to compare them with the move described by the plaintiff as having occurred. Further, there was no oral evidence to the effect that any equivalent move was performed either during that term or at some equivalent point in any other term.)

I consider that the evidence as to what was involved in the hip lock move given by Ms Weijers, the defendant and Ms Bray should be accepted in preference to the evidence of the plaintiff, Ms Loeschnauer and Ms McGavick. That is because there is nothing in the manner in which those witnesses gave evidence which would indicate that their evidence on this issue was unreliable and their evidence is more consistent with the contemporaneous email from Ms Weijers. Each was very familiar with their own teaching of moves at the iSpin studio. I therefore find that the hip lock move did not involve releasing the hands at the top of the move. Further, in the light of their evidence about the fact the pancake move was unknown to them and that there was a “pikelet” move which corresponded to the move shown being performed by Ms Loeschnauer in Exhibit 12, I find that the plaintiff was not asked to perform the “pancake” move and was not performing the “pancake” move at the time that the accident occurred.

Were students told to use a spotter?

Ms Weijers and the defendant both gave evidence that students that they taught were instructed to use a spotter for the level III hip lock move. Ms Bray did not agree with the proposition that she would teach students to do the level III hip lock move without a spotter. Ms Loeschnauer gave evidence that the students were directed to either use a spotter or “have a go”. The plaintiff gave evidence that there was no conversation about spotting. Ms McGavick, who was not present on the day when the accident occurred, gave evidence that she had never observed a spotter being used during a sling class, even though she had been taught a hip lock move which she said involved releasing the hands from the sling.

I accept the evidence of Ms Weijers, the defendant and Ms Bray in relation to the instructions that were given. In particular, I accept the evidence of Ms Weijers that she instructed students to use a spotter. Once again, there was nothing in the manner of in which Ms Weijers, the defendant or Ms Bray gave evidence that would indicate that their evidence about their general practice for the level III hip lock move was unreliable. There is clearly a possibility that, having regard to the occurrence of the accident and the claim, their evidence and the evidence in the Weijers video reflects a greater emphasis upon the use of a spotter than was each of their practice of the time. So far as Ms Weijers’ evidence is concerned, her evidence is consistent with what she said in her email immediately following the accident (see [34] above), namely, that if students were to try the level III move then they should make sure that they had a spotter to ensure that their legs went back into the sling after the move. Further, her evidence is consistent with her having said in the immediate aftermath either, “that’s what happens when you don’t have a spotter” (as Ms Weijers said in oral evidence) or “I told everyone not to do this version without a spotter” (as Ms Bray said in her email in 2015). I accept Ms Weijers’ evidence that she made this remark prior to realising the gravity of the plaintiff’s accident. However, the fact that she did make a pointed remark spontaneously in the aftermath of the accident is more consistent with her having given a direction than her either having not given any direction about the use of a spotter or simply describing the use of a spotter as an option. Finally, having regard to the nature of the moves involved and the material from which the sling was made, it appears that it would be difficult to reliably get the performer’s foot back into the unsecured bottom loop of the sling without the assistance of a spotter to open the bottom loop at the critical time. In my view, that physical reality makes it more likely that a direction was given to use a spotter. For those reasons, I find that Ms Weijers did give an instruction to use a spotter.

I cannot go so far as finding that Ms Weijers expressly prohibited students from attempting the move without a spotter. Clearly, she did not police students so as to detect and prevent students attempting the move without a spotter. She herself gave evidence that her back was turned to the plaintiff who attempted the move without a spotter. I also accept Ms Loeschnauer’s evidence that at the time of the accident she was standing in the loop of the sling, the implication being that she was about to attempt the move without having a spotter herself.

The mechanics of the accident

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.

Foreseeability

The defendant contended that the risk of harm was not foreseeable and hence the requirement of s 43(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) was not satisfied. The defendant relied upon the evidence of Ms Weijers and the defendant that they had never seen anyone fall out of a sling nor had there been any other accident at the iSpin studio. The plaintiff also gave evidence that she had not seen anyone fall.

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.

Breach

The particulars of negligence set out in the Amended Statement of Claim were extensive. In final submissions counsel for the plaintiff summarised them as follows:

(a)failure to warn of the risks;
(b)failure to advise or require the use of crash mats;
(c)failure to provide fall protection;
(d)failure to give proper instructions and direct the use of a spotter;
(e)directing the plaintiff to remove her hands;
(f)failure to supervise; and
(g)failure to operate a safe system.

I will address each of these alleged breaches separately.

(a) failure to warn of the risks

The plaintiff is correct in pointing out that the she did say that she believed the sling class was safe that she “was not aware it was particularly dangerous at all” and that she considered it to be a strength building class as a sideline to her pole classes. Counsel for the plaintiff submitted that “If the Defendant had warned the Plaintiff of the risks of falling and suffering injury or serious injury … she would have used the ‘thicker mats’”. I do not accept that the case can be characterised as one involving a failure to warn. The evidence given by the plaintiff was not that had she been warned she would have used a thicker mat. Rather, her evidence was that she would in any event have preferred a thicker mat but that none were available.

More generally, I am not satisfied that the plaintiff was unaware of any relevant risk in performing the moves. There was little, if any, evidence about the range of moves that the plaintiff had performed earlier in that term and no evidence as to the range of moves that she had performed in the large number of sling classes taken prior to the term in which the injury occurred. The plaintiff did give evidence that she had not performed a move at that height before. However, I am not satisfied of that on the balance of probabilities because of my concerns about the reliability of the plaintiff’s evidence and the absence of any coherent picture of what she had done in the approximately 50 classes prior to the one in which the accident occurred.

Further, it would be obvious to any reasonable adult that performing activities above the ground secured only by one’s entanglement with a fabric sling would involve a risk of injury through falling if the entanglement was insufficient. Had that risk being expressly pointed out, I am not satisfied that it would have added to the plaintiff’s knowledge or modified her behaviour in any relevant respect.

For those reasons I am not satisfied that a reasonable person would have given to the plaintiff a specific warning about the risks of falling from the sling or that if such a warning was given the accident would not have occurred.

(b) failure to advise or require the use of crash mats

(c) failure to provide fall protection

Particulars (b) and (c) can be dealt with together. To the extent to which the submissions of the plaintiff were directed to the provision of fall protection generally (particular (c)), the only measure that was identified and in relation to which the calculus required by s 43(2) of the Civil Law (Wrongs) Act could be performed was the provision of crash mats. As a consequence, it did not add anything to particular (b).

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.

The plaintiff submitted that a reasonable measure to protect against the risk of harm of falling whilst performing the move that the plaintiff was advising students to place crash mats under the sling when performing the move, requiring them to do so and prohibiting them from doing so without such mats. The plaintiff’s submissions referred to a requirement to provide “adequate” fall protection. In oral submissions, in order to explain what would have been “adequate” to address causation issues relating to the capacity of the crash mats to have prevented the injury in the present case, the submission of the plaintiff evolved to a proposition that the defendant was required to place as many mats as would have been necessary to prevent the plaintiff’s injuries. This would, the plaintiff submitted, have been sufficient to ensure that the area protected was wide enough so that however the plaintiff fell she would fall on a mat rather than the unprotected floor and that the amount of cushioning provided by the mats would be such as to make it more likely than not that the plaintiff would not have suffered any serious injury as a consequence of the fall. This submission was based upon mention being made of that possibility in the report of Dr McIntosh where he said, “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)”. It is notable that Dr McIntosh did not express any opinion that this was a measure that was required in order for the conduct of the defendant to be reasonable. Rather, it appears to be a comment made in passing about how the mats that were available might have been able to be used.

Having regard to the submissions made, it is important to bear firmly in mind that for the purposes of assessing the reasonableness of the measures taken by the defendant it is necessary to examine the question prospectively: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126]-[129]. It is not appropriate to reason with the benefit of hindsight so as to design a reasonable precaution by reference to whatever would have been necessary to prevent the particular injury caused to the plaintiff.

There was no evidence in three categories which might have made it easier to determine that what occurred in the present case involved a failure to take reasonable precautions against a risk of harm.

(a)First, there was no evidence of the practice undertaken in any equivalent sling exercise class. It was therefore not possible to make an assessment of the reasonableness of the conduct in the present case by reference to the practice of competent and experienced practitioners in the field not associated with the defendant.
(b)Second, there was no evidence of any accepted standards or guidelines relating to the use of mats in sling or pole exercise classes. It was therefore not possible to make an assessment of the reasonableness of the conduct by reference to such standards or guidelines. The only available evidence was that of the defendant who said that based on her training it was recommended that crash mats be used during inversions, that is when the head is upside down—a circumstance which, on the findings of fact that I have made, should not have occurred in the present case.
(c)Third, the evidence of the nature of the sling moves taught in the sling classes was insufficient to provide an overall picture of the types of moves which were taught and, hence, insufficient to provide a reliable picture of the level of hazard involved in those moves. There was some evidence that some moves were performed at height and that some moves (whether performed at height or not) did involve the performer having their hands off the sling. However, that left it impossible to determine the range of moves that were taught over the course of a term of sling classes.

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.

(d) failure to give proper instructions and direct the use of a spotter

In final submissions the plaintiff’s case was put on the basis that Ms Weijers directed the students to perform the move with a spotter or, if comfortable, to just have a go. This involves basing the claim upon the evidence of Ms Loeschnauer rather than the evidence of the plaintiff herself who denied any instruction about using a spotter and denied that she had ever seen a spotter used in a sling class. Ms Loeschnauer said that Ms Weijers said something similar to, “Grab a spotter if you need one. Otherwise if you feel confident, go for it”.

For the reasons given at [70]-[72] Ms Weijers did instruct that a spotter should be used. Therefore, this particular of negligence is not made out.

(e) directing the plaintiff to remove her hands

For the reasons given at [69], I found that the plaintiff was not directed to remove her hands from the sling. Accordingly, this particular of negligence is not made out.

(f) failure to supervise

So far as failure to supervise is concerned, the plaintiff submitted that Ms Weijers either observed the fall and had hence knowingly failed to prevent a student from proceeding without a spotter or, alternatively, if she had her back turned, failed to adequately supervise the activities of the whole of the class.

As indicated above (at [63]), notwithstanding the terms of the contemporaneous email, I accept the oral evidence of Ms Weijers that she did not actually see the accident because her back was turned as she supervised another student.

Notwithstanding that Ms Weijers had instructed the students to use a spotter, she did not take steps to enforce the use of a spotter sufficient to prevent the plaintiff (and, it appears, Ms Loeschnauer) from attempting the move without a spotter. I do not consider that the teacher of such a class was required to supervise the students so as to prevent them acting contrary to her instructions. This was a class of adults rather than a class of schoolchildren. I do not consider that the plaintiff has established that some increased level of supervision was a precaution that a reasonable person in the defendant’s position would have taken.

(g) failure to operate a safe system

The submission made by the plaintiff was that the defendant had a duty to its’ students to ensure that it provided exercise classes and sling classes that were safe. The particular submissions in relation to this related to the requirement to enforce the policy that students were spotted by a trainer whenever they performed a manoeuvre for the first time.

The plaintiff also submitted that there was only one instructor and hence limited supervision and that the sling classes involved teaching when a student was suspended upside down above a concrete floor without any fall protection and while performing a move which involved twisting, turning and dizziness.

The submissions did not really accord with the way in which the evidence in the case was led. There was not any general duty to provide sling classes that were safe. Rather, the duty was to take such precautions against a risk of harm that a reasonable person in the defendant’s position who was in the possession of all of the information that the defendant had or ought reasonably to have had at the time of the incident. In my view, this allegation does not add anything to the more specific allegations about what should or should not have been done at the time of the accident.

Causation

Causation is governed by s 45 of the Civil Law (Wrongs) Act. Separate issues arise in relation to the use of crash mats and the use of a spotter.

Mat – causation

Given that I have found that there was no breach of duty, the question of causation does not arise. Had it arisen it would have been significantly influenced by the particular conclusion reached in relation to what amounted to “adequate” fall protection.

The evidence about the size of the crash mats that were available was inconsistent:

(a)in her first report Ms Armour said that they were 1.8m x 1.8m x 30mm but in her third report said that this involves an error and that they were in fact 1.8m x 800mm x 30mm;
(b)Dr McIntosh described them as 1870mm x 1870mm x 50mm and included photographs of the mats which were consistent with them being square rather than rectangular;
(c)Mr Armanasco in his report said that he was informed that the dimensions of the mats were 2400mm x 1800mm x 50mm;
(d)in oral evidence the defendant said that the mats were the same mats that she had inherited from the previous owners and that they were 1800mm x 1800mm x 50mm; and
(e)photos outside the expert reports were consistent with the mats being square and, in one instance, consistent with a single mat being able to be positioned around a pole, presumably by means of it having a slit in it going as far as the centre of the mat.

I prefer the evidence of the defendant and of Dr McIntosh to the other evidence about the shape and dimensions of the crash mats. The defendant had long experience of the actual mats. Dr McIntosh made measurements and took photographs of the mats when he visited the premises.

Although the submissions of the plaintiff were made on the basis of the dimensions in Ms Armour’s third report, namely 1800mm x 800mm they were consistent with a submission that the equivalent of either one, two or three layers of mats should have been placed around the pole in order to achieve fall protection sufficient to prevent injury.

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.

Spotter – causation

A question of causation in relation to the presence of a spotter would arise only if no direction to use a spotter had been given or, if it was given, reasonable care required strict enforcement of that direction. Causation would be established if I could conclude, on the balance of probabilities, that the cause of the accident was the plaintiff’s inability to put her foot securely back into the sling after having performed the hip lock at height. However, while that is one possibility and a possibility consistent with the evidence, the limitations on the evidence as to what occurred precludes a finding, on the balance of probabilities, that it was the inability to securely place the foot into the sling upon descent that was the cause of the accident. If, for example, the accident occurred in the first or second scenarios described at [74] above, then the presence of the spotter would, so far as it is possible to tell, not have made any difference to the occurrence of the accident. In those circumstances, it follows that I cannot be satisfied, on the balance of probabilities, that the absence of a spotter was a necessary condition for the happening of the harm as required by s 45(1)(a) of the Civil Law (Wrongs) Act.

Conclusion on liability

As will be apparent from the above, I am not satisfied that the plaintiff has established a breach of duty on the part of the defendant. For that reason I will direct that judgment be entered for the defendant. I have made findings on causation to the extent that it is possible to do so in the light of my conclusion on breach.

However, in case I am wrong on the question of breach and causation can be established in relation to a breach of duty, I will undertake a contingent assessment of the damages for which the defendant would be liable.

Contingent assessment of damages

Events following the accident

Following the end of the sling class during which she was injured on 11 February 2014, the plaintiff walked to the ACT Health Walk-in Centre in Phillip but the x‑ray machine was not working and so she went to the Canberra Hospital. She was there diagnosed with a fracture of the shaft of the right radius. She described suffering from unbearable pain in her right wrist (10+ out of 10) and pain at a level of 8 out of 10 in her left wrist. She said that her hips and knees were also sore as were her teeth and jaw. However, so far as the records show, no complaint was made in relation to her hips and knees, teeth or jaw, although the medical records from the Canberra Hospital disclosed that she had grazing to her chin consistent with it having been struck during the incident. Those records also refer to her contemporaneous report that she vomited after the accident, had nil loss of consciousness and had a good recollection of the event.

On 13 February 2014, she returned to the ACT Health Walk-in Centre and an x‑ray of her left wrist disclosed an undisplaced fracture.

On 19 February 2014, she was reviewed by a registrar at the Canberra Hospital and booked in for surgery the next day. On 20 February 2014, she had surgery undergoing an open reduction and internal fixation of her right wrist.

Following the surgery, she did not go to work. She was dependent on others for feeding, dressing, showering and toileting. She had both arms in slings.

The plaintiff broke up with her boyfriend shortly after the surgery. She had been in a relationship for two years but they had not been living together. Her evidence relating to the reason for the breakup was that he was not prepared to care for her. The nature of their relationship and the reasons for the breakup of that relationship were not explored in any detail.

By 12 April 2014 the plaintiff had been off work for two months. She attended her general practitioner at the Fadden Medical Centre who recorded that she had low mood and emotional and psychological symptoms including crying episodes, anxiety and panic attacks almost every day. He provided her with a mental health treatment plan. At that point she was attempting to return to work in a graduated manner. She had an adverse reaction to one of the drugs prescribed to her and had to change her antidepressant medication. She went to see a clinical psychologist, Coral Warren, and commenced cognitive behaviour therapy. Her primary issues appeared to be panic attacks and a lack of emotional control causing moderate levels of depression.

The plaintiff had in 2009 a period of four weeks when she suffered from what was described in her general practitioner’s notes as panic attacks but no greater pre‑existing history than that.

In June 2014 she changed doctors to a doctor willing to bulk bill her at the National Health Cooperative, although she continued to see doctors at the Fadden Medical Centre. She reported that she was gaining weight.

At the end of June she enrolled in a beginners’ pole class. She had previously been at the intermediate level. Her evidence was that she required some alteration of the activities because she suffered from wrist pain. Her instructor for that class, Ms Bray, gave evidence that she was able to perform what was required for the purposes of the class.

In July 2014 problems with a broken tooth were identified and some treatment was provided. In August 2014 she was involved in a motor vehicle accident in which she did not suffer any injuries.

In September 2014 Ms Warren reported to her previous general practitioner expressing the opinion that she suffered from major depression disorder (with anxious distress). Her anxiety would cause her to vomit. At this stage her anxiety was causing some absenteeism from work and Ms Warren issued a medical certificate to cover her on an occasion when panic prevented her from getting to work. Ms Warren recorded that she had a family history of depression.

A further mental health treatment plan was prepared in October 2014 by a general practitioner at the Fadden Medical Centre. The plaintiff described herself as having a mental breakdown at this time because she was in so much pain, she was depressed and had reached the point where she did not want to leave the house.

On 8 January 2015, she was reviewed at the ACT Health Walk-in Centre and reported that her right wrist was still causing problems including difficulty carrying shopping and with her performance as an administrative assistant at work. The history given was that she had mental health issues which had been “plaguing” her over the last 12 months but they had stabilised. The notes from this visit record: “Wrist is still causing problems, including difficulty carrying shopping and performance as [an] administrative assistant at work”. She was then referred to the Canberra Hospital and on 13 January 2015 she was treated at the Canberra Hospital where a history was taken of the plaintiff having developed pain in her right wrist suddenly a month ago. She reported to a staff specialist that she had “not really had any cessation of pain and improvement in function of her right wrist”.

At the end of January a general practitioner at the National Health Cooperative recorded that she had been using lots of Panadeine Forte and other miscellaneous pain relievers for her right wrist pain but that this did not seem to help.

In February 2015 a general practitioner from the Fadden Medical Centre recorded that she was suffering from “intense depressive and anxiety symptoms”. She was recorded as having ongoing symptoms in her right wrist but no further discomfort in her left wrist. In the same month she managed to see Dr Maurizio Damiani, a surgeon, who recommended the removal of the plate and screws from her right wrist in an attempt to reduce the pain in that wrist. That operation was performed on 24 March 2015.

In April 2015 her general practitioner recorded that she had no further discomfort in the right wrist or weight-bearing difficulty, although he did record that she had some right wrist weakness.

In May and June 2015 she went on a holiday with a number of friends to Mexico and the United States for a period of four weeks. She continued to suffer from anxiety on that trip. Ms Loeschnauer, who went with her on the trip, described her as having a panic attack on an occasion which took a whole day to recover from. On the other hand, it is apparent from some of the photographs that were put into evidence that she appeared to be able to enjoy other aspects of the trip.

In February 2016 she was diagnosed with type 2 diabetes and received advice about that. This made her feel more depressed and she had time off work.

Medicolegal reports were provided by Dr John Saboisky, Dr Garth Eaton and Dr James Rohrsheim in May and June 2016.

In June 2016 there was the prospect of a restructure at work and the plaintiff became concerned about her job. She continued to express frustration about her weight gain to her general practitioner.

In July 2016 a rehabilitation provider was appointed by Airservices Australia and this led to an offer of a voluntary redundancy being made to her. Her general practitioner’s notes record that she had taken a redundancy and “job too stressful”. She accepted the offer on 31 August 2016 and that was her last day at work. Her email accepting the voluntary redundancy makes specific reference to her desire to recover from the personal injury which occurred in February 2014. I do not place any weight on that description of the reason for her redundancy because it is clear from the email relating to the appointment of a rehabilitation provider that she was very conscious, at that stage, of the need to protect the viability of a claim against the defendant.

The plaintiff enrolled in a diploma at the “Canberra Makeup Academy” but she had to withdraw because she could not do some of the manual tasks required for the purposes of the course.

She received dental treatment in September 2016 with Elegant Smiles, a dentistry practice.

In December 2016 she went on a cruise with her mother, Caroline Toner. I accept her mother’s evidence that she would get agitated when other people got close to her and would have to leave the public areas. Ms Toner shared a cabin with her and every night the plaintiff would wake up screaming as she was suffering from night terrors.

The plaintiff suffered anxiety attacks even in circumstances which would not normally be considered to be anxiety inducing. In 2017 she travelled to Perth with her mother in order to see her grandmother. She suffered an anxiety attack involving shaking, vomiting and fainting at her grandmother’s house and her mother had to spend two hours calming her down. Events such as this are occurrences which her mother regularly needs to assist her with.

There was, however, evidence that she had been able to travel to Surfers Paradise for a holiday in early 2018 and had previously been able to travel to Melbourne and Sydney with friends.

The plaintiff has continued to receive treatment for depression and anxiety since then as well as seeing numerous doctors for medicolegal purposes.

In 2018 she became eligible to get job placement assistance with an organisation called MatchWorks which assists people with disabilities to obtain jobs. She has not yet found a job which would be suitable for her. She lives with her dog and rabbit in premises in Braddon. She describes that she often suffers from panic attacks and also suffers from agoraphobia. She is reluctant to leave the house, although she is more able to leave the house when she is with someone that she trusts such as her mother, a friend or when she is going to a place with which she is familiar. A particular coffee shop and bottle shop fall into this category. She socialises with a smaller group of friends than she did previously. She is now a significant consumer of alcohol, drinking most days.

Having said that, the additional material about her activities does not completely undermine the contention that she remains significantly disabled by her anxiety condition. In that regard, I place particular reliance upon the evidence of her mother. I considered her mother’s evidence to be reliable insofar as it disclosed an adult child who needed substantial assistance with her day-to-day life because of what is, on occasions, crippling anxiety and panic attacks. I accept her evidence that her psychological deterioration occurred in the immediate aftermath of the accident. I accept her evidence that, notwithstanding being able to participate in an overseas cruise with her mother, she remained substantially affected by her anxiety condition in a way which meant that her behaviour was very much out of the ordinary and she was only able to function with a supportive person such as her mother around. Similarly, although she was able to participate with her friends in activities overseas, she remained affected by her anxiety condition. Probably by reason of a forensic oversight, the evidence of her disabilities upon her trip to the United States and elsewhere was limited to a single example of a severe panic attack which occurred when the travellers were in New York. Nevertheless, even that one example indicates significant impairment of ordinary functioning. There was evidence elicited in cross‑examination that she had maintained a relationship with a man for a period of eight months in the time since the accident, although when that occurred or any detail about the nature of the relationship was not provided. The evidence about her level of functioning was consistent with being able to maintain some connection with a smaller group of friends but with an underlying level of anxiety and depression which renders social interaction more problematic and significantly limits her capacity to be employed or participate in ordinary life.

So far as her physical condition is concerned, the evidence of the orthopaedic surgeons and occupational physicians indicates that at most she suffers mild ongoing pain and discomfort in her right wrist and the possibility of some indefinite pain and dysfunction of fluctuating severity. In that regard I prefer the evidence of Dr Eaton, Dr Dias and Dr Rohrsheim to Dr Stubbs, who appears not to have elicited or accepted the complaints by the plaintiff of ongoing pain and discomfort. The evidence the plaintiff’s mother, which I accept, is that the plaintiff cannot pick up heavy objects, cannot write properly and cannot do tasks involving fine motor skills. These observations appear to go beyond the findings of the orthopaedic surgeons and occupational physicians. The evidence can only be reconciled by finding that she suffers from the condition described by the orthopaedic surgeons and occupational physicians but that the functional outcome of this is manifested in the manner described by her mother. The functional outcome may reflect the variations in severity as described in the medical evidence or be contributed to by her psychological condition.

Based on the plaintiff’s evidence I am satisfied, on the balance of probabilities, that the accident was a necessary condition for her employment with Airservices Australia coming to an end. While the evidence about her employment and its termination was limited, the psychological condition of the plaintiff as described in the evidence and in the report of Dr Saboisky would make maintenance of such employment very difficult if not impossible in the circumstances.

Other causes of the plaintiff’s medical condition

There is a reference in the notes of her general practitioner consistent with one of the causes of her upset, shortly after the accident, being a breakup with her boyfriend. The plaintiff explained the reason for the breakup as being that he was not prepared to care for her in her then disabled state. Given that the breakup occurred only a few days after the accident and that they did not live together, that is unlikely to be more than one factor contributing to the breakup. The nature of the relationship, causes of the breakup and its psychological consequences were not explored in any detail in the evidence. The question is whether the existence of this other possible contributor to the onset of her mental health conditions means that the plaintiff has not established factual causation on the balance of probabilities. I consider that the plaintiff has established factual causation on the balance of probabilities. Whilst the plaintiff was clearly vulnerable to anxiety and depression by reason of her psychological makeup and there are likely to have been other factors contributing to the onset of the anxiety and depression observed after the accident, the injury was a significant one requiring a significant period off work and a degree of dependence upon others. Her right wrist continued to cause her problems at least up to the surgery in 2015. The accident was a necessary condition for the onset of the anxiety and depression that in fact occurred. The underlying vulnerability to anxiety and depression is a matter which needs to be considered when taking account of vicissitudes.

Teeth

The reports of Dr Nichols provide a plausible mechanism by which a violent occlusion may have led to stress fractures and then decay of the plaintiff’s teeth. While it is certainly possible that the accident caused a violent occlusion as described by Dr Nichols, I am not satisfied, on the balance of probabilities, that the condition of the plaintiff’s teeth was caused by the accident. While there was a reference in the contemporaneous hospital notes to the plaintiff having injuries consistent with having bumped or scraped her chin, there is no other reference to jaw or tooth impact and the first attendance for dental treatment after the accident was in July 2014. At that point, there was no reference to any damage having been incurred during the accident. The absence of dental records for the plaintiff prior to the accident makes it more difficult to reach a conclusion that the condition of her teeth post-accident was caused by an impact incurred during the accident rather than other causes. However, contrary to the assumption made by Dr Nichols in his first report that it was likely that the plaintiff’s teeth were normal, in his second report he records that there was most likely a pre-incident history of deep decay causing tooth collapse. That reduces the likelihood that it was something that occurred during the accident that was the cause of the plaintiff’s subsequent tooth decay problems.

Diabetes

The plaintiff had a family history of diabetes. Her mother and brother have suffered from diabetes. Her mother’s diabetes is controlled by diet. There was no evidence as to the age at which her brother suffered an onset of diabetes. I accept the evidence of Dr Carter that it is possible but unlikely that the taking of Seroquel led to the onset of diabetes. I also accept the evidence of Dr Carter that the accident is likely to have brought forward the time of onset of diabetes. Although the defendant submitted that Dr Carter appeared to be basing his opinion on the assumption that the plaintiff had ongoing physical difficulties which prevented her exercising, the more significant question is whether or not the plaintiff’s increase in weight was caused by the accident. That is, it does not matter whether the increase in weight was caused as a result of a physical inability to be active and exercise or as a result of depression and anxiety interfering with what had previously been the plaintiff’s level of exercise and activity. As a consequence, I am satisfied that the accident was a necessary condition for the onset of diabetes when it did. However, consistent with Dr Carter’s report, I consider that the impact of the accident was to bring forward the time at which the onset of diabetes occurred rather than to cause diabetes in a person who otherwise would not have suffered from it.

General Damages

As a result of the accident the plaintiff suffered two broken wrists. Those injuries caused her pain at the time and required treatment which resulted in her being disabled and requiring assistance for a period. The pain in her left wrist resolved by February 2015. She continued to have some pain in her right wrist up, which worsened in early 2015 and prompted her to have surgery to remove the plate and screws in March 2015. She continues to suffer some symptoms in her right wrist which in combination with her psychological condition limits her activities of ordinary life.

The accident and its consequences triggered the onset of an anxiety condition which has continued to date. That has been significantly disabling, although it has not prevented her participating in some social activities to a limited extent. She still requires ongoing assistance and support with activities of ordinary life from her mother. Her physical and mental health condition affected her capacity to function effectively at work and she took a voluntary redundancy and has not returned to work. The assessment of general damages must take into account the very significant possibility that due to her psychological vulnerability other events in her life would have triggered a similarly disabling psychological condition in any event and the fact that with a more concerted effort at treatment she may be able to better manage or overcome her problems. In final submissions the plaintiff submitted that an award of general damages of $130,000 would be appropriate. An award of damages at this modest level, in my view, would appropriately take into account of both of the factors to which I have just referred.

Interest on general damages would be $13,000 (4% x 0.5 x $130,000 x 5 years).

Loss of earning capacity

The plaintiff’s assessment of damages for her loss of earning capacity was based upon the proposition that her earning capacity was accurately reflected in the amounts that she was earning at Airservices Australia or would have received had she remained in that employment.

At the time of the accident, the plaintiff was employed at Airservices Australia as a remuneration officer. She earned an annual wage which corresponded to an after‑tax amount of $53,015, a weekly equivalent of $1020. By the time of her redundancy in 2016, her rate of pay had risen to a gross figure of $76,118, and a net figure of $59,833. That in turn gave a net weekly amount of $1151. She was entitled to superannuation at the rate of 12.5%. Although the plaintiff’s submissions involved applying a superannuation rate of 12.5% to the net figure, given that the plaintiff was entitled to 12.5% of the gross amount, I have calculated superannuation on the basis of 13.5% of the net figure even though this rate is not based on any actuarial assessment and may understate the adjusted percentage.

In relation to past economic loss, the plaintiff submitted that she was entitled to loss of wages for the period off work after the accident until 10 April 2014. She also claimed loss of wages for the period from the second operation on 24 March 2015 until 19 June 2015. The difficulty with this submission is that in the last month of this period she was actually on holidays in the United States. The plaintiff also claims just under 10 full weeks off work prior to the end of her employment on 31 August 2016.

The plaintiff then claims loss of wages in the period following her redundancy up until the date of judgment on the basis that she was unable to perform the duties required in her role due to her depression and panic attacks and has been unable to obtain work since. In oral submissions the plaintiff accepted that money received as part of her redundancy payment, at least in so far as it was attributable to wages, should be deducted from her past loss.

The defendant contested whether all of the general claim for leave from Airservices Australia could be attributed to the accident having regard to the leave records obtained from Airservices Australia. The defendant also put in issue whether or not the psychiatric condition was caused by the accident.

As part of her redundancy package the plaintiff was paid 16 weeks pay based on her years of service, three months pay in lieu of notice and 10 days pay “in lieu of offer of [voluntary redundancy] consideration period”.

There were clearly some periods when the plaintiff was off work due to the immediate effects of the accident and subsequent surgery, as well as her 2015 surgery. The available leave records appear to show that she was on paid sick leave during these periods. In those circumstances, she has not demonstrated that she suffered any loss. The plaintiff claimed another 10 weeks of leave prior to her redundancy. The available leave records do not demonstrate that the reason for that leave was either the physical consequences of the accident or the surgery or were due to her psychological condition. It is certainly likely that some of that leave was, as that was consistent with the plaintiff’s evidence about her inability to cope with work and her suffering symptoms of her psychological condition at work. She may have suffered some loss as a result of the fact that the leave records appear to show that she was required to take recreational leave in some cases where her sick leave had been exhausted. That is consistent with the fact that as at the date of her redundancy she had no available accrued recreation leave. Having regard to the schedule of leave taken at Tab 14 in Exhibit 23, I would award damages equivalent to four weeks net wages for this period which would represent those periods of leave taken by the plaintiff for conditions caused by the accident which she was not able to take as sick leave. That would be an amount of $4080 (4 x $1020). Superannuation at 13.5% of this net figure would give an amount of $551. The total loss would therefore be $4631. As against this, Exhibit 6 discloses that she received a total of $45,525 gross for amounts corresponding to wages. After-tax the plaintiff received $40,497. Setting off this amount against her loss of wages in the period gives a net gain of $35,866. This amount would need to be set off against her future loss of wages.

So far as the future is concerned, the plaintiff’s contention in final submissions was that the plaintiff’s prognosis was guarded and that loss of earning capacity must be assessed in the light of the fact that she had been unable to return to any employment since being made redundant in September 2016. The plaintiff submitted that an appropriate award of damages would involve a loss of 100% of her pre-injury earnings for a three‑year period. Following that period, the plaintiff contended that although she hoped to return to employment it was unlikely that she would be able to earn as much as she otherwise would have. The plaintiff therefore claimed damages equivalent to 25% of her previous earnings for the balance of her working life.

The plaintiff's working capacity is, on the evidence, clearly impaired by her psychological condition. In the absence of her psychological condition, the condition of her right wrist would not significantly interfere with her earning capacity. The assessment of a loss of earning capacity in the future must take into account the uncertainty of her prognosis, the prospect of improvement with more concerted treatment and the likelihood that even without the accident some other event in life would have triggered the onset of depression and anxiety in the same unexplained way as in fact occurred. In my view, these factors render it impossible to make an award other than on a buffer basis. I would award damages for future economic loss equivalent to a loss of wages and superannuation for three years, being a sum of $195,697 ($172,419 ($1151, multiplier 149.8) + $23,277 (13.5%, $172,419)). Deducting the net gain arising from her redundancy payment gives an amount of $159,831 ($195,697-$35,866)

Griffiths v Kerkemeyer/s 100 damages

The evidence in relation to the claim for Griffiths v Kerkemeyer damages was given by the plaintiff, her mother and Ms Loeschnauer.

I did not consider the evidence of the plaintiff about the extent of assistance that she received either from Ms Loeschnauer or her mother was reliable. Whilst I accept that there were short periods immediately post the accident or surgery during which she needed a significant degree of domestic assistance, the plaintiff’s estimates appeared not to distinguish between times when the relevant person was available to assist her and periods when actual assistance was required. There was no evidence that Ms Loeschnauer took time off work to assist her but rather assisted her when she was at home. The evidence of the plaintiff’s mother did not identify whether she took time off work in order to assist her daughter, whether she was not in paid employment or only assisting the plaintiff when she was otherwise available.

The plaintiff’s claim for Griffiths v Kerkemeyer damages was made on the basis of a cost of $45 per hour. The rate claimed had originally been $35 per hour but the Amended Statement of Particulars filed on the first day of the hearing increased the rate from $35 to $45 per hour. However, no evidence was led to support this higher rate. I will calculate the award on the basis of rate of $35 per hour.

Past

Counsel for the plaintiff did not suggest that it was appropriate to make an award based on the evidence given by the plaintiff. Her evidence was the effect that:

(a)in the first week after the accident, Ms Loeschnauer spent 10 hours per day;
(b)in the following week, her mother spent between 14 and 16 hours per day (her mother said 10 to 12 hours per day);
(c)in the balance of the period until the casts were removed, Ms Loeschnauer spent 10 hours per day;
(d)up until the second surgery, Ms Loeschnauer spent between two and three hours per day;
(e)in the period after the second surgery, the plaintiff said that for two days she received 12 hours per day from her mother; and
(f)in the period since March 2015, she received approximately six and a half hours assistance each Monday from her mother and then around another two hours per week assistance from her mother.

The plaintiff’s mother gave evidence of having given substantial assistance in the period after the first and second surgery, as well as ongoing assistance in the period since the second surgery. Ms Loeschnauer also gave evidence about the assistance that she provided, although did not quantify it in the same way as the plaintiff.

In final submissions counsel for the plaintiff submitted that an award of damages should be made on the basis that:

(a)after the accident, the plaintiff received 30 hours care from Ms Loeschnauer and 35 hours care from her mother;
(b)she received 30 hours care per week from Ms Loeschnauer for a period of eight weeks until the casts were removed;
(c)she received 10 hours per week until the second surgery on 24 March 2015; and
(d)after the second surgery, she claimed 10 hours per day for two days and subsequently two hours assistance per week.

The defendant submitted that an appropriate award for past domestic assistance was $10,000.

I accept that in the period following the accident the plaintiff was substantially disabled and needed a high degree of care because she had both hands in plaster and in slings. Similarly, she needed assistance in the immediate aftermath of the second accident. I accept the evidence of her mother about the extent of assistance that she provides to her daughter on an ongoing basis, most particularly on Mondays. In relation to the time periods identified by counsel for the plaintiff, I would award damages as follows:

(a)after the accident, an amount based upon Ms Loeschnauer having provided 14 hours care and the plaintiff’s mother having provided 21 hours care (35 hours);
(b)for the period until the casts were removed, a total amount equivalent to 14 hours of care per week (a total of 112 hours);
(c)following the second surgery, her mother provided five hours of care for two days (10 hours); and
(d)in the period following the immediate aftermath of the second surgery, I would make an award higher than that contended for by the plaintiff having regard to the evidence of the plaintiff’s mother about the assistance that she provides, namely, at a rate of six hours per week (six hours per week for 200 weeks: 1200 hours).

The total number of hours is 1357. At the rate of $35 an hour, this gives a total award of $47,495.

Future

So far as the future is concerned, in final submissions the plaintiff submitted that the equivalent of two hours per week for the remainder of her life would be appropriate.

In my view, consistent with the approach taken to the assessment of damages for future economic loss, the award for the future should be made on a buffer basis. I would base that on the level of assistance of which her mother gave evidence, which involves spending most Mondays with the plaintiff, assisting her with those activities such as shopping and interacting with government organisations. Her mother gave evidence that this takes from about 10am until at least 7.30 or 8pm. Adopting six hours of this is being dedicated to providing domestic or related assistance, I would therefore base the calculation of the buffer on the basis of six hours assistance per week for a period of three years. That would give an award of $31,458 ($35, six hours, multiplier 149.8).

Out-of-pocket expenses

Past

The plaintiff claimed past out-of-pocket expenses of $16,638.73 made up as follows:

(a)amounts paid by the plaintiff $10,273.13 (Exhibit 24);
(b)amount paid by Medicare $3865.60 (Medicare Notice of Past Benefits in Exhibit 24); and
(c)travel costs of $2500.

The basis for the calculation of travel costs was not identified and the cost of travel had not been the subject of oral evidence.

The plaintiff claimed all of her attendances with general practitioners or other providers paid for by Medicare as part of damages. The only item not claimed was a Medicare payment for a Pap smear. The defendant came to no agreement about categories of payments that might be recoverable and made no item by item submissions. While some of the attendances at general practitioners were principally related to matters unrelated to the accident they would usually involve provision of repeats of medication or referral for testing related either to the plaintiff’s mental health condition or diabetes. In the absence of any specific submissions by the defendant directed to individual items, I would allow the whole of the amount claimed.

Similarly, there was no agreement in relation to any of the out-of-pocket items that had been paid for by the plaintiff. Nor were there submissions directed to any particular out‑of‑pocket expense or invoice amongst the 61 pages of photocopied invoices. The defendant made the general submission that not all of the items claimed were recoverable. Having regard to the standard orders made in relation to out‑of‑pocket expenses and the nature of this type of damages claim, that approach was unhelpful. Having regard to the evidence in the bundle and the absence of submissions directed to any particular item in the bundle, I would have awarded damages for the whole of the amount claimed, namely, $10,273.13.

The evidentiary basis for the claim for travel expenses has not been established and I would make no award of damages for travel expenses incurred by the plaintiff.

The total that would have been awarded for past out-of-pocket expenses is $14,139.

I would have awarded interest on the past out-of-pocket expenses paid for by the plaintiff at Court Procedures Rules 2006 (ACT) rates on the assumption that they were incurred uniformly over the period since the accident.

Future

So far as the future is concerned, the plaintiff submitted that damages should be awarded on the basis of medications equivalent to $39.26 per week. This was the cost of the plaintiff’s current medications for depression, anxiety and diabetes. She also claimed amounts for future attendances at general practitioners, physiotherapists endocrinologists, an orthopaedic surgeon and a psychiatrist totalling $42.44 per week. She also claimed one off costs totalling $20,800. These included amounts for the treatment of her teeth, a treatment plan from a specialist hand surgeon, a supervised exercise program and 40 counselling sessions. The total amount identified in the plaintiff’s written submissions was an amount of $120,659 which incorporated a 15% discount for vicissitudes.

The medication regime claimed included medication for the plaintiff’s mental health as well as for the management of her diabetes.

The defendant submitted that the only future out-of-pocket expenses that should be awarded would be those relating to her psychological condition and that an amount of $10,000 would be appropriate.

The approach that I would adopt to the award of damages in relation to future out‑of‑pocket expenses is similar to that which I would have adopted in relation to future economic loss, namely, to award a buffer equivalent to the amounts that would be incurred over a three-year period in the future. So far as the plaintiff’s mental health condition is concerned, that takes account of the prospect that it would have arisen in any event and also the prospect that with appropriate treatment the long-term demands for medication could be reduced or eliminated. The plaintiff’s prognosis is not so clear as to permit an award other than on a buffer basis. So far as diabetes medication is concerned, I have calculated that buffer by reference to the bringing forward of the time at which the plaintiff would suffer from diabetes rather than on the basis that the diabetes would only have occurred by reason of the accident.

Similarly, in relation to future medical treatment, I will allow amounts for treatment by general practitioners, a consultant endocrinologist and a psychiatrist. I would not however allow any amounts for physiotherapy or further review by an orthopaedic specialist.

So far as one off costs that were claimed, I would not allow any amounts in relation to the plaintiff’s teeth as I have not found that factual causation was established in relation to the condition of her teeth. I would not permit any amount for a “treatment plan” from the specialist hand surgeon or a supervised exercise program. However, I would permit an amount for counselling sessions as that would be consistent with a concerted attempt to address the plaintiff’s mental health condition and supported in the report of Dr Saboisky.

The basis on which I would calculate an award of damages for future out‑of‑pocket expenses would be:

(a)One-off cost of 40 sessions of counselling at $160 per session: $6400.
(b)Buffer for future medication: $5881 (calculated by reference to $39.26 per week for the medications identified in the plaintiff’s written submissions for three years, multiplier 149.8).
(c)Buffer for future treatment expenses: $4054 (calculated on the basis of three general practitioner visits, four consultant endocrinologist visits and one psychiatrist visit per annum, that is, $27.06 per week for three years, multiplier 149.8).

This would make the total award for future out-of-pocket expenses $16,335.

Contributory negligence

The defendant pleaded that the plaintiff was guilty of contributory negligence and particularised that the plaintiff:

(a)Failed to take reasonable care for her own safety.
(b)Failed to obtain and use a safety mat when she knew or ought to have known that they were available.
(c)Failed to listen to the instructions of the instructor.
(d)Failed to ensure her own safety by attempting the move in the aerial spin class without a spotter when she knew or ought to have known that a spotter was required.
(e)Failed to perform the movement in the correct manner, despite being experienced in aerial sling classes.
(f)Failed to take heed of the defendant’s warning of the risk of injury.

These particulars of contributory negligence were refined to a more intelligible form in oral submissions to involve a failure to follow instructions in relation to the move to be performed, the use of a spotter or the availability of mats. Whilst it is likely that, if breach of duty and causation were established that the damages should be reduced on account of contributory negligence, it is not possible to determine whether that is so or to make a contingent assessment of the extent of contributory negligence in the absence of identification of the breach. Having regard to the variety of possible breaches, I do not consider it is appropriate to perform that exercise on a contingent basis.

Order

The order of the Court is:

1.Judgment be entered for the defendant.
2.The plaintiff is to pay the defendant’s costs of the proceedings.
3.Order 2 does not take effect for a period of 14 days and if, within that period, either party notifies my associate by email (copied to the party) that it seeks a different order, then order 2 does not take effect until further order of the Court.

I certify that the preceding two hundred and twenty‑seven [227] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 21 February 2019